Grant Baars

Grant Baars

Do you have a Will?


It is important now, more than ever, to ensure you have arrangements in place to protect your assets. Creating a last will and testament is one method to make sure your belongings, assets, and heirlooms are distributed and handled in accordance with your intention.  As the current pandemic continues to keep all of us on our backfoot and the situation is constantly changing, we explore the importance of having a will, why you need one and the importance of your behaviour. Additionally, if you already have a will, it is important to consider reviewing, updating, or amending your will.  Afterall, a will is one of, if not the most, important legal document you will create in your lifetime.

A will (also known as a Last Will and Testament) at a basic level, is a formal document identifying how, what and to whom your estate is distributed, upon your death. Estate is a legal term and simply refers to everything in your name, possession, or ownership. It includes things such as your assets, belongings, heirlooms and more. A will acts to carry out your living intention of what happens to your estate once you die.

Without a will, the court may rule you died intestate. When a person dies intestate, this means that your estate will not be distributed how you want. It also means that people you may not want to receive a benefit of your estate, may now apply to receive a benefit (subject to the relevant Wills and Administration and Probate legislation of your jurisdiction.) However, even if you do make a will, in some instances the Court may form the view that such persons may have a valid claim to your estate contrary to your intention.

For instance, the Estate of Peter Solly Joss (deceased) is an example of when the Supreme Court may overturn a will, that is contrary to a will-maker’s intention. In this matter, Mr. Joss (deceased) did not name his daughter in his will as beneficiary to his estate.  His daughter, despite previously attempting to murder her father, contested the will and succeeded.   The basis of the daughter’s claim and success was on the ground of reliance.

Reliance is a circumstance where the Court takes into consideration the will-maker’s behaviour and intention during their lifetime. The Court will consider the frequency and degree of reliance that a party had on the will-maker and the will-maker’s behaviour, during their lifetime. If the Court is of the view that there is a need for such reliance to objectively be considered to continue after the death of the will-maker, the Court will generally grant a claim. 

This is one reason why you should consider making a will that contains strict terms. More importantly, the will-maker must understand that their behaviour in life may determine the grounds that an excluded party to a will, may seek to claim against the estate.   

If you would like to create a will, vary a current will or seek advice on your will, contact our team today to discuss how we can assist you.

For information on Probate and the Supreme Court of Victoria, please click here.


What are the requirements to make a valid will?

In a nutshell, capacity, age, valid witnesses and in writing. However, any of these points may be contested by an interested party.

Can I have conditional terms in my will?

Yes. subject to the condition being lawful. A conditional term in a will is one that is subject to something happening (or not). For instance, a parent may wish to direct property to their children but only when they reach a certain age.

Can I nominate a beneficiary other than my family?

Yes. You can even name a pet, charity, or other organisation to receive a benefit of your estate. Of course, this is providing that there is legitimacy to your reason to nominate such beneficiaries and complying with the requirements of will making. However, know that any such nomination may be contested.

Do I really need a lawyer to draft my will?

As the old saying goes, you get what you pay for. If you decide to purchase a will online or one from a cereal box, understand that the validity may be challenged and most likely contest by interested parties. Moreover, it will most often be a generic document and will not cater for the specific individual and your circumstances. That is why you need a lawyer to draft your will. A lawyer will ensure that your will is drafted according to law, discuss in detail with you your circumstances and intention, and raise any potential complications that may arise.

I already have a will, what should I do?

As life changes, so too may your testamentary intention. The will you drafted 10 years ago may not reflect your current or true intention. This may even be true for a will that was drafted 1 year or 1 month ago. Review your current will and get in touch with us to let us know how we can help you secure your intention.

Is it expensive to change or add terms of my will?

A term of a will can be changed or added at any stage of your life if the requirements of validity continue to be satisfied. The cost involved to make a change to a will all depends on the extent of change you want to make. If the change is straightforward and does not involve restructuring a will, contents, or substance, then it should be a straightforward expense. Likewise, if you want to make an extensive change, such as restructuring benefits, the substance of the will etc. The cost involved will always be proportionate to the change.

Our team are ready to assist you with creating a will that reflects your wishes.

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