A ‘Will’ is a document setting out your wishes as to how you would like your assets and belongings (called your ‘estate’) to be dealt with after you die.
In Australia, people have full freedom of ‘testamentary disposition’. This means that you can leave your estate to whomever you choose. So while people commonly choose to leave their assets to close family and friends, you don’t necessarily have to include these people in your Will. However, some people do have a right to ask the court to give them more or part of your estate if you have not provided for them ‘adequately’.
A Will can also be disputed or challenged in several other ways. For more information about this, see our article, What are the avenues to challenge a Will?
If someone dies without a Will, their estate is distributed according to the ‘rules of intestacy’. The rules of intestacy provide a specific hierarchy of people to receive your assets and are applied strictly to every person, no matter what their personal circumstances were. In many cases, the rules of intestacy unfortunately do not give effect to a person’s wishes.
For example, if a person is survived by a legal spouse (including a husband or wife from whom they are separated but not legally divorced) and has no children, the surviving spouse will receive the entire estate.
If a person has no spouse and no children (for example, a young adult), that person’s parents are each entitled to half of the estate, regardless of whether the parent(s) had any relationship with the child or not.
The rules of intestacy also apply to any assets that are not properly dealt with by your Will – in that case you have a ‘partial intestacy’.
If the rules of intestacy do not deal with your estate how you would wish, it is very important that you make a Will and have a proper estate plan to deal with any assets that your Will cannot deal with.