Wills are legal documents designed to provide instructions as to how your property and assets are to be distributed upon your death. If you have children, a will can also state whether or not your children are to have a legal guardian appointed.
A good will should accurately reflect your financial and domestic circumstances, and should be revised at least every five years or in the event that your life experiences a major change (marriage, having a child, the death of a family member etc.).
There are certain circumstances that affect the enforceability of a will, such as:
• Marriage – a will made before a marriage is considered invalid and cannot be enforced;
• Separation (not divorce) does not affect a will;
• Provisions relating to your spouse, such as appointment as executor or gifts made to them under the will are revoked automatically upon divorce.
If you have any dependent children, it is vital that your will appoints a legal guardian for those children. If the nominated guardian dies or is no longer able to carry out their appointed duties, you should review your will and appoint a new guardian.
Contesting a will
Wills can be challenged or contested on the basis that the will was:
• Tampered with, or incorrectly executed;
• Executed under pressure from parties other than the will-maker when the will-maker was suffering from incapacity;
• Unclear in its meaning.
A court can also issue a maintenance order if a will does not contain sufficient provisions for a person whom the deceased was obliged to provide for, such as domestic partners, stepchildren, or people who acted as carers for the deceased.
Applications contesting a will must be made within 6 months of probate having been granted for the contested will.