If you answer “Yes” to any of the following questions, a correctly worded will can do it for you. That is why you should use a lawyer to help you.
Does your will need to do any of the following:
- Prevent your spouse from changing their will without reference to you and after your death, without reference to your children?
- Assist in protecting your assets from a Family Court property order requiring your surviving spouse to transfer some of your property to your surviving spouse’s new spouse?
- Protect your assets from a Supreme Court claim by your surviving spouse’s new spouse or the new spouse’s children/dependants if they contest your surviving spouse’s will?
- Ensure that children your surviving spouse may have from a new relationship do not benefit from your assets?
- Protect your assets if your surviving spouse becomes a bankrupt?
- Give tax advantages to your surviving spouse and each child?
- Give your surviving spouse and each child the option to access those tax advantages through a tax effective and flexible trust that comes into existence on your death?
- Transfer control of your companies, trusts and other entities to your surviving spouse and eventually equally (or otherwise) to your children?
- Protect assets given to a child where the child becomes a bankrupt?
- Protect assets given to a child where the child is later divorced?
- Protect assets given to child where that child suffers a disability?
- Protect assets given to child where that child has a problem, such as being a spend thrift, drugs or gambling?
- Make an allowance for capital gains tax that may result from leaving a gift to a charity or non resident child?
- Make an allowance for capital gains tax that may result from leaving specific assets to nominated beneficiaries?
- Protect your executor from a claim for inadvertently not having complied with your executor’s investment obligations under the Trustee Act?
- Leave your superannuation entitlements to the person you want to leave them to and possibly tax effectively to your spouse, minor children and inter dependents?
- Align your life insurance policy beneficiaries with the gifts under your will?
The points that mention a spouse can equally apply to a defacto relationship.
Without a will, if you are married with children only from the marriage, the law now provides that your spouse gets all of your assets. However, if you are married and have children from another relationship, your surviving spouse does not get all of your assets. In that case, your surviving spouse is only entitled to the personal effects, an amount of money prescribed by law and 50% of the balance.