Wills and Estates (ACT)
The area of law that pertains to wills and estates in the Australian Capital Territory is governed by the Wills Act 1968 and the Administration and Probate Act 1929. Most people have contact with this area of law when they make their own will or act as an executor for the estate of another person. However, this area of law can be quite complex to navigate. This article provides some foundational information about this difficult area of law, but specialist legal advice should be sought for questions about testamentary and probate law.
What are Wills and Estates?
In the ACT, estates are made up of both assets and liabilities of a deceased. It is essential that a will make provision for all the eligible assets of the deceased, but it may not be clear to a testator what constitutes an asset in a deceased estate. For instance, company-held assets and assets that are held in trust are not included in a deceased estate, and neither is any property that is jointly owned with another person.
The assets that are included in a deceased estate are the deceased’s possessions, including any real estate, automobiles, stocks and shares, investments, personal property and household belongings.
In the ACT, every adult with testamentary capacity can, and should, write a will to account for the assets and liabilities of their estate. It is common for younger people to think it is unnecessary for them to have a will, as they think they have decades to make arrangements and they have limited property to account for, but it is always better to have provision in place if the unexpected happens. If someone fails to make a will they are considered legally intestate, and it will be a much more difficult process for their loved ones to administer their estate.
When listing personal possessions in a will, the description of these assets should be as clear and identifiable as possible to ensure there is no confusion. For example, instead of describing a piece of jewellery as the bracelet given to me by my father on my 21st birthday, the testator should be more specific: a silver bracelet with six blue topaz gemstones inscribed on the inside with the words “all my love, dad”.
A testator also needs to appoint a trustworthy person in their will to act as an executor. An executor is legally empowered to enact the last wishes of the testator for their estate after their death. The testator can ask a friend or relative to act as executor or employ a professional such as a solicitor or Public Trustee to assume responsibility for the estate.
Impact of Marriage or Divorce on Wills and Estates
In the ACT, legislation stipulates that a testator’s will is automatically revoked when they marry or enter into a civil partnership or union. The only exception is where the testator has made the will in contemplation of marriage. By contrast, there is no automatic effect on the will if the testator separates from their spouse, so the estranged spouse remains the main beneficiary if the testator passes away. In the ACT, a divorce automatically revokes any gift left to the spouse in the will and removes a spouse from appointment as executor.
Who Cannot Make a Will?
A testator cannot make a will unless they fully understand the legal implications. A solicitor may not take instructions from a client unless they are convinced that their client can fully grasp the implications of their actions. The testator must make decisions of their own free will, without undue influence or pressure from another person. There is an assumption that a person under the age of eighteen lacks the necessary testamentary capacity and therefore cannot make a will unless they are already married or planning to get married. The Supreme Court of the ACT can make an exception for a minor to make a will if it is warranted and the testator understands the consequences of making a will.
Wills and Estates: Informal Wills
In the ACT, there are legal formalities that must be followed when drawing up a valid will. That is why it is crucial to consult a solicitor, who will ensure that a document is appropriately drafted. There are some general rules that the testator should be aware of when writing a will. Firstly, the will needs to be either handwritten or typed, and the testator must initial each page and sign the final page of the document. Two impartial individuals must witness the testator’s signature, and then fix their own signatures to the document. The testator’s spouse and beneficiaries cannot witness the testator’s signature because they are not considered impartial.
An invalidly drawn document is typically called an “informal will”, which may lead to legal challenges and possibly even the estate being declared intestate. The courts will make every effort to validate a will if the testator’s wishes are clear and there was obvious testamentary capacity, but the process will be complicated and time-consuming.
A will should not be altered by writing in new clauses in the margins, or erasing existing clauses: if a testator wishes to alter the terms of an existing will, it is a much better idea to start over with a completely rewritten and properly executed document.
Wills and Estates: Who Stores the Documents?
If a solicitor or the Public Trustee and Guardian drafts a will, they will store a copy on file. The testator will also receive a copy that they should keep in a secure location, preferably stored in a location that is protected from fire or other damage. The testator should tell a family member or executor where the will is stored so that it is simple to locate in an emergency.
Armstrong Legal has extensive experience dealing with all aspects of wills and estates in the ACT. If you need assistance, please call our expert team on 1300 038 223 or send through a request for an appointment.