Many people share their experiences and stories from their Wills
and Estate matters with family and friends. This can create myths
about the way that Wills work. Here are a few facts that everyone
should know about Wills made in Western Australia:
The person (or persons) that you nominate to be your executor
is not obliged to accept that role. A clause appointing the
executor is a wish only. This means that if your nominated executor
is unable or unwilling to act, then they cannot be compelled to
act. Your Will simply gives your nominated person a right of
priority to act as your executor. If that person renounces their
right, then any other person can act as your executor. In
circumstances where there is no other person willing or able to
act, then a professional executor (such as an accountant, solicitor
or the Public Trustee) may be appropriate.
Marriage and divorce automatically invalidate a Will, unless
the Will was made in contemplation of that marriage or divorce. It
is important for your Will to have a clause expressly stating that
the Will is made in contemplation of marriage or divorce.
Your Will gives away the assets that you own as at the date of
your death. If your Will gives someone a specific item, such as a
piece of jewellery, but you no longer own that item at the date of
your death, then the beneficiary simply misses out on their gift.
This is called "ademption". The beneficiary is not
compensated in any way for the value of the item.
Your Will should be updated as your circumstances change. A
codicil is an additional document to your Will that makes minor
amendments to your Will. A codicil is cheaper than making a new
Will. However, it is usually best to make a new Will so that your
wishes are clearly contained within the one document only.
There are some types of assets that you can't leave to a
beneficiary by your Will. For example:
assets in your joint name with any other person – these
assets will automatically go to the surviving owner; and
superannuation and life insurance – these benefits
usually go to a person that you have nominated with your fund.
Under section 27 of the Wills Act 1970, if you leave a gift to
your child in your Will, and that child predeceases you, but leaves
children of their own (your grandchildren), then that gift will
automatically pass to those grandchildren unless your Will says
One of the formal requirements for a valid Will is that the
will-maker's signature must be witnessed by two independent
adults. It is not appropriate for a beneficiary to witness the Will
because this raises the possibility that the beneficiary has
pressured the will-maker to sign the Will. The will-maker and the
witnesses must all sign the Will in the presence of each other. If
the will-maker and the witnesses all use the same pen, then this is
some evidence that they were all together at the time of signing.
It is also a good idea for the witnesses to print their full names,
address and occupation in case they need to be located at a later
date to give evidence about what happened at the time of
A testamentary trust is a trust that arises upon the death of
the Will-maker. The provisions of the trust are built in to the
Will. The beneficiaries do not have direct control of their
inheritance if it is held in a testamentary trust. A trustee will
look after their inheritance, and make investments on their
behalves. The trustee can choose to give cash sums to beneficiaries
to assist with their living expenses, education, holidays and
general financial support.
No Will is airtight. Any one of the following people may be
entitled to claim under the Family Provision Act 1972 (WA) for
greater provision out of an estate:
spouse or de facto partner of the deceased;
children (whether biological or legally adopted); and
parents of the deceased.
In certain cases, step-children, grandchildren, former spouses
and former de facto partners are also entitled to claim.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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