Joint Will (+Children)

Download a Joint Will in word format.  Save Will for Couples, edit and reuse as many times as you need.

PRECEDENTS ONLINE

 

ONLINE LEGAL DOCUMENTS

 

Joint Will Template (+Children)

A Joint Will is important even though you may not consider yourself rich, but no matter where you believe you stand on the socio-economic ladder, you always need a Joint Will. Be careful that you don’t undervalue your true wealth, or what you might be worth within a relatively short time.

Download your own Joint Will here

A joint will for couples template is much, much more than the mere transfer of an inventory of assets. It is a legal document…. You can download a will for couples instantly here.

This joint will is made for use by married couples who want to leave their estate to each other. Suitable for couples who are married, defacto or planning to marry. You don’t always need your lawyer to write your joint will if it is a basic joint will — one that leaves a home, investments, and personal items to your loved ones.

Also known as a  will for couples is a single will that’s signed by two people, usually a married couple, leaving all their assets to each other. …

A joint will is a document containing a person’s instructions as to how their property is to be distributed after their death.  Failure to make a will results in the distribution of the assets of the deceased being determined by statute. The law relating to wills in New South Wales is covered by the Succession Act 2006.

However, the issues arising from including or excluding children from former relationships in clients wills are now commonplace. This demands an understanding of the options and pitfalls inherent in some apparent solutions as well as the provisions of the Succession Act 2006 relating to family provision claims.

Because legislation such as the Trustee Act 1925 provides executors with wide powers of investment those powers have been omitted from the wills precedents as entirely unnecessary.

With specific bequests take care to identify what is owned by testators such as interests in companies, trusts and partnerships.

Any expenses of looking after personalty the subject of specific bequests, such as warehousing and delivery costs are for the donee, not the estate. To avoid potential disagreement later and depending on the circumstances this should be clarified in the will.

In describing personal effects remember that it may be necessary to specifically include furniture and furnishings in sheds or detached flats and to include tools, plant and machinery such as ride-on mowers.

A release of debt is a legacy to the debtor. If releasing debt by will release the debtor and his estate, otherwise if the debtor dies before the testator the release fails and the debtor’s estate is liable for the debt.

It is important to be aware that if the will provides for a pecuniary legacy for the support of a beneficiary, the estate will be required to buy an annuity or set aside a fund sufficient for the income it earns to meet the liability. This can involve substantial capital cost to the estate as the court imposed terms are very conservative

  

Joint Will Template is 7 pages long.

Joint will

 Looking forward to purchasing more precedents as it’s a great service for a small legal practice just starting out.

Have a wonderful weekend!
Maree Stuart

Solicitor/Director, Lab Law

I have used Precedents Online since starting up my business over 5 years ago.  There are many documents I was able to download and use to help with the start and running of my online business.

Amanda King

Director, By The Horns

I have found Precedents Online to be very useful for my business.  I have also used them for personal legal documents.  Simple and easy to use.  I don’t have to fill out any forms or subscribe.  I can simply download the document I need and reuse it when I need it.  

Alan

Director, Promoworld

Precedents Online sells legal documents to the legal profession in Australia. The online legal documents are supplied by Kalde Pty Ltd. Most of the copyright in the works available on this site vests in Kalde Pty Ltd and the documents themselves have been created by practising lawyers.

Legal precedents sold on this site are available for immediate use.  Precedents shown on this site have been drafted by practicing lawyers and kept up to date with changes in the law.

Precedents Online. Powered by Kalde & Associates Commercial Lawyers.

 

 

WILLS

New South Wales

A full commentary on the law and practice as it currently applies to the drafting of wills and testamentary discretionary trusts.

BACK GROUND

A will is a document containing a person’s instructions as to how their property is to be distributed after their death.  Failure to make a will results in the distribution of the assets of the deceased being determined by statute. The law relating to wills in New South Wales is covered by the Succession Act 2006.

However, the issues arising from including or excluding children from former relationships in clients wills are now commonplace. This demands an understanding of the options and pitfalls inherent in some apparent solutions as well as the provisions of the Succession Act 2006 relating to family provision claims. These are discussed below.

The precedents also include a library of provisions covering less frequently used precedents including for example unusual execution clauses and the creation of life estates.

No form of codicil is included in the precedents as it is just as easy to redo the will avoiding any possibility of mislaying the second document or creating unforeseen inconsistencies through the use of different language in the two documents.

Because legislation such as the Trustee Act 1925 provides executors with wide powers of investment those powers have been omitted from the wills precedents as entirely unnecessary.

With specific bequests take care to identify what is owned by testators such as interests in companies, trusts and partnerships.

Any expenses of looking after personalty the subject of specific bequests,, such as warehousing and delivery costs are for the donee, not the estate. To avoid potential disagreement later and depending on the circumstances this should be clarified in the will.

In describing personal effects remember that it may be necessary to specifically include furniture and furnishings in sheds or detached flats and to include tools, plant and machinery such as ride-on mowers.

A release of debt is a legacy to the debtor. If releasing debt by will release the debtor and his estate, otherwise if the debtor dies before the testator the release fails and the debtor’s estate is liable for the debt.

It is important to be aware that if the will provides for a pecuniary legacy for the support of a beneficiary, the estate will be required to buy an annuity or set aside a fund sufficient for the income it earns to meet the liability. This can involve substantial capital cost to the estate as the court imposed terms are very conservative.

Testamentary capacity

Although not often an issue the first question the lawyer should consider is whether the testator has testamentary capacity.

The usual authority quoted concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549 at 565. There Cockburn CJ said:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Testamentary capacity is not a matter of the opinion of the lawyer. If there are doubts then ask questions and take notes of the answers to them. It is for the court to decide capacity assisted by these notes.

It would be prudent, for example, for the lawyer to investigate capacity further if:

  1. The testator appears to be a minor: request production of a driver’s licence or marriage certificate;
  2. There is a clear and readily apparent indication that the testator may not have capacity – for example, if the testator gives one set of instructions, followed shortly by contrary instructions;
  3. If the testator has suffered some trauma (known to the lawyer) that could later be alleged to affect capacity.

In the last two instances, rather than proceed with preparing a draft will, the lawyer might request the testator’s consent to obtaining a medical practitioner’s report as to capacity  preferably obtaining this by way of affidavit or statutory declaration.

It can be explained to the testator that the request for the medical opinion is to ensure that the testator’s will and intentions are not later challenged on the grounds of incapacity.

Take note that the medical practitioner will view any request for an opinion from a medical viewpoint rather than a legal viewpoint unless the reason for which the opinion is sought is clarified.

If a client does not have capacity, but a will is required, the lawyer may wish to consider a will authorised by the court: see ss 18-26 Succession Act 2006.

An excellent publication on capacity, including matters to be raised with the will maker’s medical practitioner,  is “When a client’s capacity is in doubt: A Practical Guide for Solicitors”, a copyright production of the Law Society of New South Wales (2009).

Testamentary capacity of a minor

Minimum age for making a will is 18, as prescribed by Succession Act 2006 – Sect 5 Minimum age for making a will. This is the age under which someone is deemed a minor and therefore lacks legal personality and capacity.

However, a minor may make a will in contemplation of marriage – s 5(2)(a) Succession Act 2006 and the Court may authorise a minor to make a will Succession Act 2006 – Sect 16 Court may authorise minor to make, alter or revoke a will.

Additional questions to ask the testator when taking instructions

Have any orders or binding agreements affecting assets been made pursuant to the Family Law Act 1975 (spouses or de facto partners) that are still subsisting and/or will affect asset distribution?

Has the will maker made a will in another jurisdiction regarding assets in that jurisdiction?  If so, by this will, does the will maker intend to revoke all wills in all jurisdictions?

A valid will

A will, apart from one made in special circumstances such as by defence personnel on active duty, is only valid when:

  1. It is in writing, and
  2. Signed by the testator, whether or not at the foot of the instrument, or
  3. Signed by any other person in the testator’s presence and under his directions, and
  4. It appears from the will that the testator intended to give effect to the will by signing it, and
  5. The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time who must attest and sign the will in the presence of the testator.

It is not necessary for the will to have an attestation clause.

Execution of a will is governed by Succession Act 2006 – Sect 6 How should a will be executed?

The formal requirements can be dispensed with by the court Succession Act 2006 – Sect 8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

Persons who cannot see cannot witness wills Succession Act 2006 – Sect 9 Persons who cannot act as witnesses to wills

Beneficiaries witnessing wills may avoid gifts see Succession Act 2006 – Sect 10 Can an interested witness benefit from a disposition under a will?

Revocation see Succession Act 2006 – Sect 11 When and how can a will be revoked?

Alteration of a will Succession Act 2006 – Sect 14 How a will may be altered

Revival of revoked will Succession Act 2006 – Sect 15 How a revoked will may be revived

Will by person without testamentary capacity Succession Act 2006 – Sect 18 Court may authorise a will to be made, altered or revoked for a person without testamentary capacity.

A will can be rectified by the Court Succession Act 2006 – Sect 27 Court may rectify a will.

Informal wills

At the time of taking instructions, you should consider the need for an informal will if the circumstances suggest that the client may lose testamentary capacity or die before a formal will can be executed.

An informal will pursuant to section 8 of the Succession Act 2006 can be created by having your client sign each page of the instructions. It is also a good idea for the practitioner to witness the client’s signature by signing as well.

Revocation, marriage and divorce

The first provision in a will is the usual revocation of previous testamentary acts.

Marriage

Marriage revokes a will unless made in contemplation of marriage. Those who make wills  while in a de facto relationship may not intend to marry. However, the precedent will provides that it is made in contemplation of marriage to avoid an unintentional revocation if they subsequently marry. It also provides that the will is not void if the marriage does not take place.

However, every will maker will have his or her own requirements, frequently including a provision that a substitute beneficiary is to inherit if the contemplated marriage does not take place within a certain period of time. Make sure that in drafting this provision terms which are vague or uncertain are avoided.

Succession Act 2006 – Sect 12 Effect of marriage on a will

Divorce or annulment

Unless a contrary intention is expressed in the will the result of divorce is that gifts to a former spouse are revoked and the subject matter passes as if the spouse predeceased the testator and any appointment as executor is taken to have been omitted from the will.

Succession Act 2006 – Sect 13 What is the effect of divorce or an annulment on a will?

Revival of a revoked will

Such a will may be revived by re-execution or by executing a document or codicil showing an intention to revive the earlier one in full or in part.  It is taken to have been executed on the day it is revived.

See s 15 Succession Act 2006 How a revoked will may be revived.

Executors and trustees

The appointment of the executor is usually straightforward and they are usually the major beneficiaries. A minor can be appointed as an executor but is not entitled to a grant if still a minor at the time of death of the testator. Leave will be reserved for the minor to prove on attaining their majority.

The court may grant administration with the will annexed to the guardian of the minor or such other person as the court thinks fit.

There is no limit to the number of executors that can be appointed but no company can be an executor other than a trustee company.

Where beneficiaries do not take their gifts straight away, for example because they are under 18 years old, or have another legal disability such as mental incapacity, the executor has continuing obligations until those disabilities are overcome and must act as a trustee of the estate. For that reason, the precedent wills refer to executors and trustees.

An executor cannot be appointed on the basis that he is the holder for the time being of some position, for instance the president of the Law Society.

A clause in a will that purports to require an executor to appoint a particular firm of solicitors to act on behalf of the estate is not binding.

Foster v Elsley (1881-2) 19 Ch D 518
Nowakowski v Gajdobraski Vic Sup Crt 12/4/96

An executor is not obliged to accept office.

Executors are entitled to apply to the court for commission.

In the precedent wills gifts to executors are expressed not to be dependent on them accepting office.

A trustee cannot buy trust property unless all beneficiaries agree or there is an express power in the will or the consent of the court is obtained.

Solicitors as executors

It is common for solicitors to be named as executors in their clients’ wills. An executor is entitled to charge executor’s commission in the following cases:

  • If there is a clause in the will authorising execut