Frequently asked Questions: Will Offer

We saw 2 free wills with our settlement? What is included in the “Free Will”?

As part of your settlement with our associate firm, Vicki Philipoff Settlements (VPS), you are eligible for up to two (2) complimentary, Simple Wills (provided you are both clients of VPS). This offer is open to you for a period of 12 months from the date of settlement to claim, after which we will insist in payment of a Standard Will.

How do I access my Simple Will?

Once your settlement has finalised, you should receive a link to our webpage, where you can input your instructions. If you have not received your link, please click below.

https://vickiphilipoffsettlements.snapforms.com.au/form/vpsfreewills

What is a “Simple Will”?

Philipoff Legal, have absolute discretion as to what is a “Simple Will”, however we will generally deem a Simple Will as the following;

1. Executor is your spouse/partner, with a substituted executor (in the State of Western Australia only).

2. Your beneficiary(ies) are to your spouse/partner, then to your children in equal share and your grandchildren in equal share.

3. Appointment of a guardian for minor children, however advice is not given

4. Disposal of your body is either cremation or burial.

5. No specific gifts.

6. No advice in relation to your will matter.

We will prepare a physical copy for you to execute or witness your execution of the Will(s). This will incur a fee of $300 plus GST and disbursements. Should you wish for us to attend your property for execution, we will levy a payment of a further $495.00 plus GST.

We do not provide any assurances as to the validity of your will should it not be executed correctly.

We will not amend the Simple Will should you change your mind in relation to your initial instructions, we will insist on payment should you decide to change your instructions. Should you misspell anything from your initial instructions, we will insist in payment.

Your Simple Will can take up to a period of 120 days from the date instructions are sent to us to draft your Will.

If your instructions are outside the ambit above, we will charge you $300 plus GST and disbursements for a Standard Will (per will).

What is a Standard Will?

Philipoff Legal, have absolute discretion as to what is a “Standard Will”, however we will generally deem a Standard Will as the following;

1. Appointment of an Executor (preferably in the State of Western Australia).

2. A maximum of 4 beneficiaries outside of your linear family (Spouse/partner and children).

3. Appointment of more than one guardian (if required).

4. Complicated disposal of body instructions.

5. A maximum of 5 specific gifts.

6. An hour with a solicitor of Philipoff Legal to obtain legal advice in our office.

If your instructions are outside the ambit above, we will charge you $600 plus GST and disbursements for a Complex Will (per will). Should you wish for us to attend your property for execution, we will levy a payment of a further $495.00 plus GST.

What is a Complex Will?

Philipoff Legal, have absolute discretion as to what is a “Complex Will”, however we will generally deem a Complex Will as anything above the ambit of a Standard Will, however falls outside the ambit of a Testamentary Trust Will.

What is a Testamentary Trust Will?

In simple terms, a Testamentary Trust Will (TTW) is a Will and discretionary trust deed combined in a single document. The testamentary trust operates on terms specified in your Will and it provides a level of control over what happens to your assets and how they are distributed.

A TTW is structured to create a will which can be enlivened after the death of the testator. These structures are effective estate planning tools that protect estate assets and can act to minimise taxation obligations for your beneficiaries, allowing for generational wealth to accumulate.

A TTW specifies which assets from your estate are to be transferred into the testamentary trust (or trusts) created by your Will. There are many benefits of a TTW, however they can be costly to set up. If you are considering a TTW, please feel free to contact our friendly staff for more information and pricing.

What is a Will in general?

Primarily, a valid will expresses your wishes regarding the distributions of your property after your death. Amongst other things, wills can also express your wishes about guardianship of minor children, they can create tax-effective legal structures for the benefit of your loved ones and may also express your wishes regarding your remains and funeral preferences.

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Formalities for a valid will?

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• For a will to be deemed “valid” it must be in writing and signed by you (the “testator”) (or by some other person over 18 years old, in your presence and at your direction).

• Your signature made on your will or acknowledged by you in the presence of 2 or more witnesses present at the same time.

• You must have testamentary capacity to execute the will.

• You must know the contents of your will and approve such contents.

• You must know where your “bounty” is to be bequeathed to (ie. You know who your estate is going to be given to after death).

Capacity?

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• You must be at least 18 years old when signing the will (or if you are under 18 years old the court you can apply to the court authorise your will).

• You must have the mental capacity to know and approve how your will operates.

Knowledge & approval?

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• You must intend for the document to be your last will.

• You must understand how the will deals with your property.

• You must give instructions for the will to be prepared in the way it was when you signed it.

Do I need to register my will/storage of Will?

No, you do not need to register your will. Unlike in some countries, it is unnecessary to “register” your will in Australia, and there is no registration authority. It may be prudent however to keep the original in the same keeping of the drafting solicitor, and to give copies of the executors named in your will.

We note, however do not endorse or encourage the use of the Western Australian Will Bank with the Public Trustee in Perth. At the time of this publication, a testator may keep their will at the Will Bank, free of charge, courtesy of the Public Trustee.

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What happens if I die with no will?

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If you do not make a will before passing away the distribution of your assets, in the State of Western Australia, your estate will be determined by Administration Act 1903 (WA). These laws will also determine who will be the representative of your estate.

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Passing away intestate (i.e. without a will) often results in greater stress, fees and delays for your loved ones. This is because they will be burdened with additional requirements to gain administrative powers over your estate, such as tracking down various birth, death, marriage and divorce certificates, whether from Australia or abroad. Often such certificates need formal translation, are hard to find and great delays occur when dealing with foreign registries.

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If you die without a will, your family will need to make an application for Letters of Administration, which we can do here at Philipoff Legal.

What can I include in my will?

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When deciding how you wish to divide your assets upon your death, it is important to know which assets you own personally and those that are owned as ‘joint tenants’ and will not form part of your “estate” when you die. You can include almost any of your assets or personal possession in your will, including:

• Real estate you hold, solely or as a tenant-in-common.

• Bank accounts.

• Shareholdings.

• Long service/annual leave.

• Refundable Accommodation Deposit (RAD) Bonds (nursing home bonds).

• Cryptocurrency.

• Motor vehicles (e.g., car, bike, boat or even an aeroplane).

• Other personal property (e.g., a watch, jewellery, pets, plants, shoes and bag collections, vinal records).

How do I leave someone out of my will?

Deciding to leave a relative out of your will is a serious decision and may have significant repercussions on your family and the person that is left out. You can leave someone out of your will in two ways, “implicitly” or “explicitly”. For example:

• You can either not mention them in your will, but provide reasons for their omission in a separate document, such as a statutory declaration; or

• You may mention them and the reasons for their exclusion in the body of your will.

This can have legal ramifications after your death, pursuant to the Family Provision Act 1972 (WA). We suggest if this applies to you, seeking proper legal advice in relation to the ramifications. This is not included in the ambit of the free wills.

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Can someone challenge my will?

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Yes, in Western Australia your will can either be disputes on the grounds of validity, or it may be challenged because it is “unfair”.

Persons identified under the Family Provision Act 1972 (WA), may challenge your Will if they can successfully claim that you did not make adequate provisions for their maintenance, education or advancement in life. Eligible persons include:

1. A person who was your spouse at the time of your death;

2. A person with who was living a de facto relationship with you at the time of your death;

3. Your child;

4. A step-child (in particular circumstances);

5. Your former spouse (in particular circumstances);

6. A person who was, at any particular time, wholly or partly dependent on you;

7. A person is your grandchild (in particular circumstances); or

8. A parent.

We can draft provisions in your Will that will clarify your testamentary wishes and deter other eligible persons from challenging your Will.  Please let us know if this may be an issue for you.

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Wills may also be challenged on the basis of validity, whereby the challenger may asset that:

1. The testator did not possess mental capacity at the time of executing the will.

2. The testator was coerced into signing the will.

3. The will is a forgery.

4. The testator did not know and approve the contents of the will.

5. The testator experienced undue influence when signing the will.

Can I write my own will? My husband/wife thinks we can just do it ourselves!

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Yes, anyone can write their own wills, however, many estates have also needlessly lost hundreds of thousands of dollars due to testator trying to save a few hundred dollars by writing their own wills. Just like you can fix your own vehicle or do your own carpentry, it is often best left to the professionals.

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Our team of lawyers have collectively spent decades drafting wills and we highly recommend tapping into their knowledge. This is not covered in the ambit of your free will, but if you would like to have assistance in relation to drafting your will, we will draft it for $300 plus GST for a “Standard Will”. More complex wills may incur further legal advice and charges, please see above for more information.

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Has my will expired?

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Wills generally do not have an expiry date. However, events such as marriages and divorces can trigger wills and bequests to become revoked.

It is generally a good idea to review your will whenever you experience a significant life event, such as the birth of a new child, or marriage problems.

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What happens after I die?

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If you die with a will, your appointed executors under your will can apply for a grant of probate to administer your estate according to the terms of your will.

However, if you die without a will (i.e. “dying intestate”) then you lose all control over the administration and distribution of your estate. Statutory rules in these circumstances direct that only an exclusive class of persons within your kin can apply for a grant of letters of administration to administer your estate. These statutory rules also predetermine your beneficiaries and what portions from your estate they are to receive.

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How can I change my will in the future?

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You can change your will in the future in the following ways:

• Creating a completely new will: This is the preferred way to change a will, as it minimises the chances for error and ambiguity. The creation of a new will generally completely revokes any former wills.

• Creating a codicil to your existing will: A codicil is a separate document that changes or adds certain terms in your existing will but leaves other terms unchanged. A codicil should follow the formal validation requirements of a valid will.  It is recommended that a new Will is drafted rather than a codicil.

What happens if I marry or divorce?

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Pursuant to changes in the Wills Act 1970 (WA), a marriage or divorce generally has the effect of revoking your will unless your will is deemed to have been made in contemplation of marriage/divorce (which ever one is applicable). There are other exceptions, which are best to discuss with one of our solicitors.