OWNER//DRIVER www.ownerdriver.com.au January 2009 — 45 Where there’s a Will … Foyle’s Law With the arrival of the New Year, it’s time to consider updating or making a Will, otherwise the government will decide where your money goes. Brendon Foyle writes The following is for mental or physical impairment Beneficiaries educational purposes and not and undue influence are taken Any person or entity provided intended to be specific legal advice into account) for in the will by way of gift or an exhaustive summary. if you • Legislative requirements or consideration becomes a require legal advice you should (specific to each State or beneficiary. The executor may consult with an experienced Territory) also be a beneficiary of the will, solicitor in your jurisdiction. • Execution of the Will (signed by common example being the Traditionally, the new Year is a the person making the will and relationship of husband and wife. time to make resolutions. it is also witnesses by two independent if not specifically stated in the will sell property, payment of funeral an opportunity to reflect and make witnesses, all in the company of or should no will exist, a court and administration expenses are or update your will. A will is, in each other). may apply the assets of an estate common authorities given to effect, a notice of your intentions in the following general order the executor of the will. other about how your property is to Who can make a Will express powers can be provided Just about anyone over 18 years until a beneficiary such as spouse, be dealt with after death. As we children, grand children, surviving to the executor or other parties are all individuals, your will of age should consider making a as nominated to attend to such as should reflect this and take into will. obviously marriage, birth “It is not parent/s, other siblings, children of other siblings or the State is business interests, partnerships or account all of your wishes and of children, divorce and purchase unusual to guardianship of children to name of a house or investment makes it identified. incorporate a degree of succession mistrust a few. planning to provide for unforeseen more important to update or make a will. your easy Gifts circumstances. Superannuation There is no requirement by law Appointment of spending Specific, general or personal Your Super will normally be gifts may be provided for in the to engage a solicitor to make a will Executors and Trustees children or will and should be described in paid out in accordance with and you can have a go at putting the Super fund Trust deed. one together yourself. however, The executor is the person/s partner.” as much detail as possible to avoid or parties of your choice, who You can sign a binding death numerous problems including the disputes between beneficiaries. are willing to act for you and benefit (BDB) direction to the choice of wording can render the Debts can also be forgiven in the administer your will. Usually this superannuation fund trustee to pay will to be void or contested after will and is treated as a gift or can your entitlement to your estate. your death. Marriage or Divorce will be your wife, husband or be included in the will as a debt This is a specialist area and advice will revoke or void your will, partner but the pressures of modern owed to the estate and may be should be obtained. with some exceptions across the living with children from different either recoverable by the executor everyone is going to die States and Territories. one of the relationships and the need for asset or appropriated to the interest or eventually, whether or not you are common mistakes made by many protection may lead for a need to share of a beneficiary entitlement. going to have some say in it by is to have a spouse or beneficiary provide a number of alternatives Most States have leglislation deciding to give the kids a bonus of the will witness the document to who is the executor. which addresses this issue. or leave it to the cats’ home is up which may exclude them from Your will can also create a to you. But remember, without a any benefit. Trust for beneficiaries and Additional Powers will the government may decide Many people underestimate the appoint guardians for dependants. Payment of debts, contracts to for you. ■ value of a having a comprehensive, generally the executor of the will professionally prepared will. is also appointed as a Trustee Rule of thumb: less money spent and can be authorised formally in making your will equates to by quite detailed provisions to control business interests, buy and Brendon Foyle is a second generation driver who potentially more money spent by has been driving for 23 years with experience in your beneficiaries to enforce it. sell real property, discretion to dangerous goods, general, refrigerated and tanker invest , et cetera to further manage freight. He is now a Solicitor of the Supreme Court Requirements of a Will the assets held by the Trust and of Queensland and still gets behind the wheel. • The document is a Will and provide for the beneficiaries. Contact Brendon at Praeger Batt Solicitors on shows an intention to make for example, it is not unusual 07 3854 4100 or firstname.lastname@example.org a will. (i.e. “last will and to mistrust your easy-spending Testament of …”) children or partner so a will may • The person making the Will has direct that the Trustee only pay- capacity (issues such as age, out an income each year.