Preparing Your Will – What is the process?

Estate Planning – Not just a Will
April 10, 2019

When you come to Babister Legal to have your will prepared, there is a process which we go through to ensure that your will is valid, and carries out your wishes.  Here is an explanation of what we do, and why:

Verification of Identity – by law, we need to formally identify each one of our clients.  Therefore, even if we have known you for 30 years, we will ask you to bring your passport and driver’s licence.  If you don’t have those, a birth certificate, medicare card or other photo identification card will be necessary.

Taking instructions – When you make contact with us, we may send you a questionnaire to complete.  This form prompts you to obtain and provide the various information that you need to prepare your will, and gives you a place to write down names, dates of birth and addresses of the relevant people you intend to name in your will.  It is in addition to our formal instruction taking process.

In order to legally make a will, you must pass a “test”.  This assesses testamentary capacity, as set down in the case of Banks v Goodfellow.  Originally decided in 1870, the requirements for testamentary capacity have been reviewed regularly in more recent cases, and found to be still appropriate.  The test is as follows:

  • Does the willmaker understand the nature and effect of making a will?
  • Does the willmaker know the nature and extent of their assets?
  • Does the willmaker know and understand the people who may have a claim on the estate, and the moral obligations they may have to each of them?
  • Is the willmaker affected by a mental disorder which may influence their willmaking?

We will sit with you to have a discussion about what you want to do with your assets when you die.  The discussion will include:

What assets you have – we need to make sure that everything you have is dealt with properly.  Some assets, such as trusts or companies, have specific methods of transfer.  Others will have tax implications for the beneficiaries.  Some assets may not be part of your estate, such as superannuation. Or you may have overseas assets which need to be dealt with separately.

Who are the people in your family, and who you should be considering.  This does not mean that you can’t leave someone out of your will, if that is what you wish, but in order to carry out your wishes effectively, we need to discuss it.

Who you want to be guardian of any minor children.  This can be a difficult decision.  If you are having trouble making a choice, we have some suggestions that you may consider.

What do you want to do with your assets?  It sounds obvious, but it may be a more complicated discussion than you initially consider.

What style of will you need.  Some people need a more complex will to cover issues like blended families, disability trusts, potential addiction or family law difficulties.

We can have that discussion face to face in our office, in your home (nursing home, hospital, workplace – wherever suits you), or via a video link.  The important part is that we have the discussion with you personally.  Your will is also only a part of your estate planning, and we will also discuss whether you have other needs.

Sending out draft – once we have your instructions, we will send you drafts.  Although it may be a little old fashioned, we usually post hard copies to you.  We will also send you a copy by email if you request.  We find that most people like to write questions or changes onto their draft, and having a paper copy ensures that you see what we intend you to see – sometimes technology glitches.  We also enclose our account at this stage.

Making amendments – We want to make sure that your will says exactly what you want it to say.  Therefore we encourage you to ask any questions you may have, and ask for any changes you want.

Signing – In order for your will to be valid, there are some very specific signing steps which need to be followed.  Amongst other steps, it needs to be signed by two independent adult witnesses, who need to be present at the same time as the willmaker and each other.  If there is a dispute about the will these two attesting witnesses may need to provide evidence in Court that the steps have been followed properly.  We usually arrange for you to sign your will in our office, so that we can make sure the steps are followed properly.  If you cannot arrange the appointment, we can provide instructions or make alternative arrangements.

Safe Custody – Hopefully it will be many years before your will is needed.  We are happy to keep your original wills in our safe custody packets.  There is no cost for this service.  We will also send you a certified copy to be kept with your important papers.  In the event that your original will is needed for probate, it will be provided to your executor at no additional cost.

If you are ready to make your will, or update an existing will, please contact us to make an appointment.

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