- It is advisable to make an Australian will ensuring that both, your South African and Australian wills are in harmony and the Australian will doesn't cancel out the South African will. If you don’t have any assets in South Africa you may only need to have a valid Australian will.
- Appoint guardians in your will who are willing and able to look after your children in the unfortunate event that you both die.
- the Will-maker must have testamentarycapacity to make a Will, including that they are over 18 years of age and of sound mind, memory and understanding; and
- the Will-maker must have theintentionthat the document they are signing constitute their Will - accordingly there must be a document (defined broadly) that expresses these intentions; and
- the Will must be signed by the Will-maker (or at the Will-maker's direction if he or she is unable to witnesses the document); and
- the Will-maker's signature must be witnessed by at least two witnesses present at the same time (the witnesses are not required to be present at the same time, though practically they should be and this is best practice).
Intestacy consequences
If you die without a valid Will, you are deemed to
have died intestate. In those circumstances, a list of beneficiaries of the
estate will be determined by the statutory scheme of intestacy in each State. In your case it would be the South Australian statutory scheme.
For example if you leave behind a spouse/defacto and no children, then your spouse/defacto will receive the remainder of your estate. If you also have a child or children and a spouse/defacto then your residuary estate will be divided as follows:
If the total estate is less than $100,000 the spouse or defacto receive the entire estate.
If the total estate is more than $100,000 the spouse or
defacto receive:
-The personal chattels of the deceased
-$100,000 from the estate and 50% of the remaining estate
-The right to purchase the estate property
Child/ren receives:
-An equal share of the remainder of the estate
The statutory scheme will further detail the beneficiaries of your estate in the event you die intestate.
However, it is always recommended that you have a valid Will in place to avoid potential problems after your death.
Executor appointment
Executor definition
An Executor is the person/s appointed under the last Will of
the deceased to manage the estate affairs after the deceased’s death.
State role in intestacy
Thank you for your question. If a person dies without a
valid Will, they are deemed to have died intestate. In those circumstances, a
list of beneficiaries of the estate will be determined by the statutory scheme
of intestacy in each State. Usually the estate will pass to spouse, children,
siblings, parents, grandparents, aunts, uncles, first cousins. If you do not
have any remaining next of kin in these categories then your estate will pass
to the State.
Even if it did pass the the State an eligible person might be able to contest
the distribution of intestacy through a family provision claim, like they would
if they have been excluded or inadequately provided for under a Will.
Executor duties
Obtaining a grant of probate
An application for Probate is usually a time consuming and
drawn out task if you are not familiar with the process. Probate or Letters of
Administration should be obtained as soon as possible after the death of the
person so that the estate can be administered in a timely and in an efficient
manner.
There are a number of issues that you would need to be aware
of including, but not limited to:-
1. The
Will must be valid or its validity may be challenged;
2. The
Will must be the last Will of the deceased;
3. Potential
applicants can contest the Will for provision, etc.
Entitlement under will
Thank you for your question. Children are not automatic beneficiaries under a Will or an estate. It is true however that in most circumstances, parents generally have a moral obligation to provide for their children under their Will unless of course there is a strong reason not to do so. It is important to have considered your wishes and put in place a legally valid Will to reflect those wishes during life.
Probate definition
Contesting an estate without will
The class of eligible persons who can contest an intestacy distribution differs in each State.
You should obtain legal advice to discuss your options in proceeding with a claim as soon as possible, as there are strict time limits which apply.
Contesting a will same sex partner
You should obtain independent legal advice as soon as possible to discuss your options.
Contesting a will
Family provision legislation in each State allows the Court to override the terms of a Will so as to provide proper maintenance and support for an eligible applicant. In determining whether provision should be made for an eligible applicant, the legislation also sets out the relevant factors which the Court may consider.
There are strict time limitations which apply to contesting or disputing a Will and the relevant rules and procedures differ in each State.The legislation governing family provision claims in Queensland is the Succession Act 1981.In QLD you have 9 months from the date of death to contest the Will.
Contesting a will
Yes it is definitely possible to contest a Will. There are two ways in which you can contest the Will;
1. Challenge the validity of the Will on the basis that the deceased lacked testamentary capacity at the time of signing their Will; they were unduly influenced; they did not know or approve the contents of their Will; the Will is a forgery.
2. Contesting the Will pursuant to family provision legislation on the basis that you are an eligible person to claim and are in financial need and the terms of the Will do not adequately provide for your maintenance and support.
In South Australia, eligible persons to contest a Will include; a spouse, former spouse, child of the deceased, domestic partner of the deceased, stepchild, grandchild, sibling, parent and a person who was in a close relationship with the deceased.
There are strict time limits in which you can contest the Will. You have 6 months from the grant of Probate in South Australia.
It is very important to obtain legal advice if you wish to proceed with your claim.
Contesting will
Family provision legislation in each State allows the Court to override the terms of a Will so as to provide proper maintenance and support for an eligible applicant. In determining whether provision should be made for an eligible applicant, the legislation also sets out the relevant factors which the Court may consider.
There are strict time limitations which apply to contesting or disputing a Will and the relevant rules and procedures differ in each State.The legislation governing family provision claims in New South Wales is the Succession Act 2006.In NSW you have 12 months from the date of death to contest the Will.
Executor cant fulfil duties
Different ountries have different laws about the drafting and proving of wills. The succession laws are not even uniform across Australia.
If you have assets in more than one country it is advisable that a will is drafted in each country. There are also practical reasons for having wills in each country.
If you have minor children it is very important that you appoint one or more guardians in your wills. You can appoint as guardians your relatives or friends in South Africa. You should firstly ensure that the guardians agree with their appointment.
If you fail to appoint a guardian in your wills the Court will choose a guardian from those who step forward. If no one does, the court will decide where your children will live, and who will make legal decisions for them.
In summary:
Yes, Will-kits are lawful.However, the enforceability of a Will-kit (or any Will) depends on whether or not it has been prepared in accordance with various formal witnessing requirements for Wills. A Will only comes into effect on your death, at which point it's enforceability will be assessed.
What are the formal requirements of valid Wills?
The requirements for witnessing Wills in SA are set out under the Wills Act 1936 (SA)and these are broadly similar to all of the other Australian jurisdictions and include the following:
Are Will-kits worth the risk?
No. The Supreme Court does have jurisdiction to look beyond a failure to meet most of the above requirements in a range of circumstances - excluding those relating to capacity (as a statutory 'Court ordered' Will should be obtained for this purpose not a Will-kit). However seeking the courts 'rectification' or 'construction' of a Will that fails to meet these requirements or conceals the Will-maker's intentions will come at great expense to your beneficiaries.
Will-kits are an alluring economic option for many, however even the most straight forward of family and property arrangements require a level of qualified advice in order to achieve your intended outcome.I have heard many refer to will-kits as creating a 'false economy', quite simply on the basis that they are initially very cheap - however, if they are not correctly prepared, they will produce significant costs and confusion for your estate and your beneficiaries, perhaps requiring the intervention of the Court to put right.
Do they achieve the best outcome?
Rarely. In terms of the outcome that these documents achieve for your beneficiaries, they do little more than appoint someone to manage your affairs and name the beneficiaries of your property. Will-kits offer no tax effectiveness or asset protection, as compared with tailored Wills that are shaped to meet your families needs, both now and long into the future. You are also likely to own a range of non-estate assets (such as superannuation, life insurance or family trusts) and these assets require the implementation of separate mechanisms altogether.
What other options are available?
A specialist estate planner should always be contacted. Particularly as most lawyers will now offer complementary estate planning consultations with no obligation to engage the firms services. Many lawyers are also more than happy to have a preliminary chat over the phone. Will drafting is increasingly a specialist area of law. Unfortunately I have seen far too many Wills that have been prepared by qualified solicitors, but that fall far short of the mark.
I recommend that you view your estate plan as an investment for your family and act accordingly.
No, your estate does not revert automatically to the State if you die intestate.
In Western Australia the property of a person who dies intestate is distributed according to a legislated will found in the Administration Act 1903 (WA).
The property will pass to the Crown if a person dies intestate leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle, aunt or child of an uncle or aunt.
The following is a decision tree about entitlements on intestacy in WA.
