Will for Blended Family
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ONLINE LEGAL DOCUMENTS
Will Template for Blended Family
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A blended family is a family in which one or both partners have a child or children from a previous relationship. Careful estate planning now should ensure that all of your intended beneficiaries are provided for when you die and that the potential for conflict within the family unit is minimised.
Wills involving a husband and a wife with one or more children of their marriage generally make wills of a fairly standard nature – they leave their assets to each other, or failing that they leave their mutual assets to their children.
A will template for blended family is drawn up when when two partners come together with one or both partners having children from a previous relationship.
Will Signing Instructions
How to Sign your Will
- You must sign and date your Will in the presence of two witnesses at the same time. It is best that all three persons use the same pen as proof of the fact that they were together at the same time.
- Your witnesses should not be beneficiaries or potential beneficiaries under your Will. There is a presumption at law that a beneficiary who has also witnessed a Will may have used undue influence in order to obtain a gift in the Will. The law therefore invalidates gifts to beneficiaries who serve as witnesses. The same applies to spouses of beneficiaries.
- Subject to the above, your Will can be witnessed by anyone who is of sound mind and at least 18 years old.
- You should review your Will in the presence of your witnesses, then sign it on the last page and the foot of every page, using your normal signature. Take care not to miss any pages. Then write the date on your Will.
- Both witnesses must see you sign your Will. They also need to see each other sign as witnesses. This requires you and your witnesses to be present at the same time.
- Your witnesses should view every page so they can confirm, if asked, that there were no amendments when you signed your Will. They do not, however, need to read the Will or know what it says.
- After you have signed and dated your Will the first witness must then sign at the bottom of each page and at the end of the Will immediately below the attestation clause in the space provided. The second witness then follows this same procedure. The witnesses should include their full names, occupations and addresses so they can be located in the future if it becomes necessary for them to verify that you signed the Will. You should confirm that each witness has signed where required. Do this while they are all still in the same room. Finally, make sure all pages of your Will are stapled together.
Storing Your Will
Keep your Will in a safe place and tell your executors where you have put the original. You may also consider giving your executors a copy of the Will. There is no requirement to register your will or do anything else with it.
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New South Wales
A full commentary on the law and practice as it currently applies to the drafting of wills and testamentary discretionary trusts.
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.
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:
- The testator appears to be a minor: request production of a driver’s licence or marriage certificate;
- 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;
- 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:
- It is in writing, and
- Signed by the testator, whether or not at the foot of the instrument, or
- Signed by any other person in the testator’s presence and under his directions, and
- It appears from the will that the testator intended to give effect to the will by signing it, and
- 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?
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.
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 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.
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.
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.
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 unt