Any person over the age of 18 years who has the mental capacity to understand what they are doing, can make a Will. Sometimes the Court will exercise its discretion to approve a Will made by a minor. A person who is mentally incapable of creating a Will may have a Will made for them, which then needs to be approved by the court.
What if I don’t have a Will?
If you die without leaving a Will or if your Will is not valid, you are said to die “intestate”. Your estate is then distributed according to the Administration and Probate Act 1958 (Vic) which sets out certain rules of distributing an intestate estate. In short, the effect of dying without a Will is that you lose control over the distribution of your estate. The rules of intestacy may mean that your estate is distributed in a manner which is contrary to your wishes. For example, if you are survived by a spouse and a child, you might wish for the whole of your estate to go to your spouse during his or her lifetime, and then to the child or children on the death of your spouse. However, the rules of intestacy require your estate to be distributed between your spouse and child/ren. This could mean that your spouse may be forced to sell the family home in order to pay a share to your child/ren. Other disadvantages of dying without a Will include: (a) you cannot appoint the person(s) who you wish to administer your estate;
(b) you cannot appoint the person(s) who you wish to act as guardian for your children;
(c) partners, stepchildren, friends and favourite charities may miss out;
(d) your assets may be distributed in a way which places them at risk, for example, by distributing to a person who has become bankrupt or is going through a family law dispute.
(e) your estate may not be handled in the most tax effective manner.
I have intellectual property rights. What should I do?
Many people do not realise that copyrights, patents and trademarks are personal property which can be distributed under a Will in the same way as any other form of personal property. Think carefully about your rights in relation to songs, patents, photographs, books, artistic works or any other intellectual property you may have. Consider how you would like these rights to be managed after you die.
If you die without a Will, your intellectual property rights will be distributed in accordance with the rules of intestacy.
If you have a Will, it is important that you expressly deal with the issue of intellectual property rights. Make sure to appoint the most appropriate person, business or trust to manage your intellectual property rights. If you do not do so, your intellectual property rights will be dealt with in accordance with your “residuary estate”, meaning the catchall provisions dealing with the parts of your estate which have not been specifically distributed to someone in your Will.
I have interests under a trust and/or a company. Can I deal with these interests in my Will?
Under your Will, you are only able to distribute assets which you personally own. A gift of an asset belonging to a trust or company will not be valid. However, a carefully drafted Will can give the desired person control of the trust or company in question which will usually allow that person to deal with the assets of the trust and/or company.
I have been left a gift under a Will, which I don’t want. What are my options?
Sometimes, despite the best intentions of the deceased person, a gift under a Will can have undesired financial consequences on the beneficiary.
A gift under a Will can be disclaimed. However, the rules are complex and vary depending on the particular circumstances of each case. If you wish to disclaim a gift, it is important that you act promptly. The Courts have held that a person can be deemed to accept a gift if s/he has knowledge of the gift and does nothing. Once a gift has been accepted, it cannot be disclaimed.