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Do I need to make a Will?

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As property lawyers, we are frequently encouraging our clients to either make a Will or update an existing Will.

For many of our clients, this exercise is tedious and seems unnecessary until they understand the consequences of not having a current Will.

A person who dies without a Will has their estate distributed to their successors under the provisions of the Wills Act 2007. This produces some surprising results, and in particular, divides the estate between the surviving spouse and the children of the relationship. An out of date Will can similarly produce unsatisfactory results, where the property included in the Will has already been disposed of or persons in an earlier relationship are included in a Will when that relationship has long since ended, or children have been born since making the Will.

Taking professional advice when making a Will, will ensure all fundamental aspects are correctly addressed. The Will should be reviewed regularly and we would recommend at least every five years. The trustees of the estate are trusted with the task of administering the Will and seeing that the assets are distributed in accordance with its provisions. Accordingly, it is helpful if the persons appointed are trusted family members or professional persons who will fulfil their role and who are available, preferably not living overseas. Importantly, where the deceased has young children, those trustees will be invaluable in ensuring that the distribution of income to the children’s guardians will promote their security and education, and advancement in life.

Your solicitor will also advise you of your obligations under the various Acts which can challenge the terms of a Will. In particular, the Family Protection Act, the Property Relationships Act and the Testamentary Promises Act are just three of the Acts which apply to the interpretation of Wills where a claim is made. In some circumstances, a person may allege that they should have been considered as a beneficiary of a Will, and that their needs should have been taken into account at the time the testator made the Will. Failure to take legal advice when preparing your Will can lead to expensive challenges and unhappy families, all of which can be avoided when your Will is prepared on a fair and equitable basis.

If it is not your intention for all of your property to be passed on in accordance with your Will, it is possible for you to remove certain assets by settling them into a trust. The assets of the trust are not subject to claim by non-beneficiaries, and the trust assets will not form part of your estate.