Wills and Probate

Wills and probate is the area of law in which we help you plan what happens to your assets, property and obligations after your death.

No one likes to think about what will happen when they – or their loved ones – are no longer around, but if you don’t plan ahead, life could become very difficult for those who are left behind. 

The easiest way to look after your affairs in these circumstances is to make a Will. In this way, you can ensure that the assets you have built up over your life are left precisely as you wish them to be.

What is a Will?

A Will is a legal document that covers, amongst other things

• who is to deal with your affairs once you have passed on
• how you wish your assets to be distributed after your death
• the care of your infant children
• any wishes you may have for your funeral.

Our Instruction Sheet for making a Will is a simple place to start your Will.

Who needs a Will?

All adults with appropriate decision making ability and who care about who manages their affairs and who receives their property after they die should make a Will.

Making a Will is not something you should leave until you are old. However old you are, you need a Will to protect the interests of your loved ones and ensure your assets go to the people you choose.

The Capacity to Make a Will

Except in very limited circumstances, you need to be 18 or over to make a Will.

You must also have the necessary mental capacity. This means that you must be able to understand:

• that you are making a Will
• the effects of that Will
• the extent of your property that you should deal with
• who is reasonably entitled to benefit under your Will
• who may claim against your estate if they are not beneficiaries of your estate.

It is also important that the person making the Will is not ‘unduly influenced’ by others. Our Capacity and Capability Clinic can help with Decision Making Ability evaluation and implementing Supported Decision Making to help resolve concerns about the defensibility and enforceability of a Will.

Remember, to express a preference is NOT the same as making a decision. We need to understand why you want to make your Will in any particular way.

The resources in the ‘What we need you to tell us’ section of our Download Page can help you prepare for the Will-making process.

What happens if you don’t have a Will?

If you die without a Will, you are deemed to have died ‘intestate’ have no say about who your estate is distributed to after your death.

Certain rules apply as to who can administer an intestate estate. That person is called an administrator and the authority that they obtain from the Supreme Court to deal with the estate is called letters of administration.

The law also provides a set of rules that govern how a person’s assets are distributed when they die without a Will. Changing the effect of these rules may be difficult, costly and, in the end, impossible to do.

Without a Will in place, you could cause your family hardship, worry and even costly legal bills if there is any confusion or disagreement after your death.

Reviewing Your Will

When was the last time you looked at your Will? Once you have written a Will, it is important to review it regularly and make sure it still reflects your wishes, especially after life-changing events such as marriage, divorce and the birth of children or grandchildren.

We are happy to help you conduct a review of your Will and to make any changes to your estate and succession plan that may be required.

Dispute Resolution

When there is a disagreement about a Will, we can help find a pathway forward. We have deep expertise in working collaboratively with a person, their family and supporters to deliver the client’s desired outcomes for wealth conservation, estate governance and succession. When necessary we support our clients with our conflict management, alternative dispute resolution and litigation services.