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Guidance Notes

Introduction

Welcome to Safewill. These guidance notes provide legal information to assist you in understanding the basics of Will-writing, and to assess whether Safewill is appropriate for your personal circumstances.

Please note that Safewill is not a law firm and does not provide legal advice. If after reading these guidance notes you are unsure of whether Safewill is right for you, we recommend seeking independent legal advice.

Glossary of terms

  • Beneficiary: A person receiving a gift or portion of the estate under a Will.

  • Bequest: A gift of money or property to an individual or charity organisation.

  • Child: a biological or adopted child, but not a stepchild, surrogate child or foster child.

  • Codicil: an addition or supplement that explains, modifies, or revokes a will or part of one.

  • De Facto/Domestic Relationship: A relationship where two people are not married, but are living with one another as partners. These relationships are defined and recognised under the law of each state/territory, and include same-sex couples.

  • Duress: Duress (and undue influence) occurs when someone is pressured by another to write their Will in a particular way to the point where they are not acting ‘freely’.

  • Estate / Residual Estate: Your total assets that are left over after all debts, funeral and testamentary expenses and gifts are provided for.

  • Executor: The person nominated under your Will to administer your estate when you die.

  • Gift: A specific asset or sum of money that you choose to leave to a person or organisation.

  • Grant of probate: A certificate issued by the Court to the executor, allowing them to administer the estate.

  • Guardian: The person you appoint to be legally responsible and care for your children or pets. Note that pet guardianship is non-binding.

  • Intestate: This means dying without a Will.

  • Minor: A child under the age of 18.

  • Physical capacity: To have physical capability to write a Will, you must:

    • Not be legally blind
    • Be able to read and write
    • Understand and speak English
    • Be able to physically sign the document

If you are unsure whether you have physical capability, we recommend seeking independent advice.

  • Testamentary capacity: The mental capability to make a Will. In order to have testamentary capacity, you must:
    • Understand the nature and effect of a Will
    • Understand the nature and extent of your property
    • Appreciate the claims that could be made upon your estate when you die
    • Not be suffering from a mental disorder that may affect how you dispose of your assets

If you are unsure whether you have physical capability, we recommend seeking independent advice.

  • Testator: The person who is making the Will.

  • Trustee: A person or organisation who holds property for another on trust.

  • you”, “your” and “ Will Maker” means the person intending to make a Will using the Safewill platform.

What is a Will? A Will is a legal document that describes how you wish your assets and posse to be distributed when you die.

Why do I need a Will? A Will is important for every Australian over the age of 18, regardless of what you own. Writing a Will ensures that your assets and possessions are distributed according to your wishes, and minimises the potential conflict that could take place after your death. Without having a Will in place, a court may determine how your assets and possessions (and even your pets) will be administered, however by having a Will, you can select who administers your estate and who will be the appointed guardian for your loved ones after you pass.

Who is able to write a Will? Any Australian over the age of 18 who has testamentary and physical capacity, and is not acting under undue duress, is able to make a Will (explained in the glossary section of these Guidance Notes). In certain circumstances, a person under the age of 18 will also be able to make a Will if they have the consent of the court. The Safewill platform does not allow you to proceed with the preparation of a Will if you are not over the age of 18 years.

Is Safewill right for me? Generally speaking, Safewill is appropriate for any Australian resident above the age of 18 years, who does not have a particularly complex estate (e.g. one with overseas assets, beneficial interests in trusts etc). If you are over 18 years and legally able to make a Will, Safewill provides you with a quick and easy method for writing your own legally valid Will that will cover matters such as guardianship provisions, estate and asset distribution, and other clauses such as gifts and a Statement of Wishes. Safewill, however, provides legal information only, and does not provide legal advice in writing your Will.

If you do have a complex estate or personal situation, you are unsure whether you can legally write a Will, or you require further advice to properly direct you in disposing of your assets, we recommend seeking independent legal advice.

How do I validly sign my Will? Once you have completed writing your Will and you have received your PDF Will from us, there are four steps to validly execute your Will. Before signing your Will, you must make sure that you have two witnesses present to witness your signing of the document:

  1. Print off your Will. Make sure your Will is printed in hard copy and that all the pages of the document are included are in numerical order, and that no pages from your Will are missing. It is recommended that you staple the pages together to prevent misplacing a page.

  2. Read your Will in its entirety. Read your Will from start to finish, making sure you understand all provisions contained within. If you do not understand sections of this Will, we recommend seeking independent legal advice before signing.

  3. Find two witnesses: In order to validly execute your Will, you must sign it in front of two witnesses. Your witness should not be:

    1. Under the age of 18 years;
    2. Legally blind;
    3. Your partner; and
    4. A beneficiary under your Will.

While the above in so far as it pertains to “your partner” or “a beneficiary under your Will” does not strictly apply in all jurisdictions across Australia, the law in New South Wales, Northern Territory, Queensland, and Tasmania is that your witnesses cannot also be beneficiaries under your Will. Regardless of where you reside, however, it is recommended that you ensure that both witnesses are independent, they are not your spouse, and they are not a beneficiary under your Will.

  1. Sign your document: In front of your two witnesses, it is recommended you state to them that you have read, understood and approved the content of your Will. While the witnesses are watching, and using a blue or black pen, you will need to sign each page of your Will and the final attestation page. With the same pen, each witness should sign each page of the Will where indicated.

When do I need to change my Will? Your Will should not be a static document – it should be updated regularly to reflect your current circumstances and wishes. This ensures that should the unthinkable happen and you pass away, your executor has in written form, your most current wishes directing them to carry out those wishes in accordance with your Will. In particular, your Will should be updated if:

  • You get married, divorced, or enter into a new relationship;
  • You have a new child or adopt a new child;
  • You wish to change your beneficiaries;
  • You wish to change your executor, or one or more of your executors becomes unable or unwilling to act as your executor;
  • You wish to change the person listed as guardian for your children;
  • You acquire or dispose of any major assets (for example property, winning the lottery etc);
  • If you dispose of any gifted assets; and
  • If you wish to maintain the relative value of gifts of money.

Guardianship

Do I need to appoint a guardian? If you have any child or children who are under 18 years of age, it is recommended that you consider appointing someone as their guardian.

In many instances, a guardian clause will only become relevant if the other parent has died. Ultimately, a court (such as the Family Court) can decide who should be appointed as the guardian based on what is considered to be in the best interests of the child or children. However, the court will usually take into account your wishes as expressed in your Will and for those reasons, appointing a guardian is something that you may wish to consider to ensure the best outcome for your child or children. If you are unsure or have any queries or concerns whatsoever about appointing a guardian, we recommend that you seek independent legal advice.

Who should I select as guardian? Guardianship is a complex area of law, and you should consider carefully who would be best positioned to look after the welfare of your children if both you and the child’s other parent were to pass. If you are unsure about who to select as a guardian, you may wish to obtain independent legal advice. Your choice for guardianship is a very important decision. When assessing the suitability of a guardian for your children, some of the matters that you may wish to take into consideration are as follows:

  • That the guardian is physically, financially and emotionally able to care for your child.
  • Minimising the level of change to your child's lifestyle, for example, whether the guardian’s location and lifestyle meets your expectations for your child.
  • Whether or not the child already has a relationship with the guardian.
  • Ensuring the guardian will provide the best environment possible for your child to grow up in.

Executorship

What is an executor? What are their responsibilities? An executor is the person you nominate in your Will to take care of everything related to your estate after you pass.

Executors take control of your estate upon death, and are tasked with obtaining probate, following the instructions of your Will, and managing any other conflicts or responsibilities that may arise. Any small assets that are not dealt with in your Will are given to your executor to distribute.

Your executor is tasked with ‘administering your estate’. Simply speaking, this means that they are responsible for ensuring all expenses and debts are paid, and all assets are distributed according to the instructions in your Will. More specifically, they will be responsible for:

  • Finding your Will;
  • Arranging your funeral;
  • Obtaining your death certificate;
  • Compiling a list of all your assets and liabilities;
  • Assessing the value of the estate;
  • Obtaining probate;
  • Paying debts, outstanding tax, duties and funeral expenses; and
  • Distributing the assets according to the terms of the Will.

Who should I select as executor? When preparing a will using Safewill, you can appoint up to two co-executors, and one back-up executor should your primary executor(s) be unable or unwilling to accept this responsibility. Where you appoint two primary executors, they will need to work together to administer your estate, unless one of them is unable or unwilling to act at the time of your death, in which case only one will act as executor.

It is best practice to also appoint a back-up executor. A back-up executor will only accept responsibility where all primary executors are unwilling or unable to accept their executorship. Safewill allows you to appoint one back up executor.

You can appoint anyone you wish as your executor, as long as they are above the age of 18 years, they are not an undischarged bankrupt or incarcerated, and they are not prevented from acting as executor due to a disability. Your executor must also be ordinarily resident in Australia, and must have mental capacity i.e. sound mind, memory and understanding of significance and nature of administering an estate.

Your executor(s) must be able to perform functions required to administer financial and legal affairs.

You should note that the role of being an executor can be a stressful and time-consuming task, and you may want to consider your chosen executor’s capacity to accept this responsibility.

Payment for acting as executor An executor can apply to the court for ‘executor’s commission’ – a payment for their time and effort in administering an estate. The court can award this payment at its discretion. If you have appointed a professional executor, they will most likely charge fees and/or commissions for their time.

Funeral Directives Any funeral directives to your executor are non-binding. Your executor will take all reasonable steps to try to accommodate your burial wishes, but is not bound to follow these directives.

Beneficiaries

What to consider in nominating beneficiaries? You are free to dispose of your assets under your Will as you deem fit. When choosing beneficiaries, however, it is important to consider the risk of claims being made against the estate by people who have not been provided for under your Will. This is because each state has different laws that allow certain people to bring a claim against the estate in certain circumstances. Where a gift to a beneficiary fails to vest, the gift becomes part of the residual estate. In order to minimise this risk, you may want to consider making adequate provision for those people to whom you may have a responsibility to provide for their support and welfare. If you are unsure whether someone has a claim or not, or whether you should make provision for a certain person under your Will, we recommend seeking independent legal advice.

Charities Charities can be listed as beneficiaries under your Will. Safewill has ‘partner charities’ with pre-populated details in our user workflow – these are example charities only. You are entirely free to choose any charitable beneficiary that you wish, and are absolutely not obligated to leave a gift to any of our charitable partners. In order to leave a gift to a charity, it is recommended that you provide their full legal name, address and ABN to ensure the correct charity receives your gift.

Please note that not all charities are endorsed tax exempt or deductible gift recipients. We recommend that you seek professional and financial advice regarding the charitable status of a beneficiary and the relevant tax consequences.

Leaving gifts to minors You are free to nominate beneficiaries under your Will that are not yet 18 years of age at the time of your death. Generally speaking, however, these beneficiaries are unable to take possession of their gift until they reach 18 years of age. In each state and territory there are different laws for payments that may be allowed to be made to underage beneficiaries prior to reaching the age of majority.

Gifts to minors will be discharged by the executor where the gift is delivered to the child’s parent or guardian. If you are unsure or have any concerns regarding the leaving of gifts to minors, we recommend seeking independent legal advice.

Disposing of different assets

Sums of money You can leave specified sums of money to beneficiaries. Where the assets in your estate are insufficient to meet the gifts you have left, the gifts abate in proportion. Currently a Will generated using Safewill does not provide for prioritising beneficiaries, and should you require this option, we recommend seeking independent legal advice.

The relative value of gifts diminish over time and are not adjusted for inflation – your Will should be updated regularly to maintain the relative value of all gifts.

Solely owned property You can gift property that you solely own as you wish. It is important to note however, that if you do not own the property that you are gifting at the time of your death, the gift will fail. Any liabilities attached to gifted property are conveyed with the property, unless expressly stated.

Jointly owned property Property may also be jointly owned by you and another person or people. This will either be owned as tenants in common, or as joint tenants.

If your property is owned as tenants in common, you are free to distribute your share of the property however you wish under your Will. If your property is owned as joint tenants, you will not be able to dispose of your share (unless you are the last surviving joint owner, in which case, the entire property will form part of your estate). If you are unsure how your property is jointly held, we recommend seeking independent legal advice.

Superannuation You may have financial interest in one or more superannuation funds, and your superannuation may be considerable. When you die, your superannuation benefits do not automatically form part of your estate. Usually, it is the trustee of the superannuation fund that will decide whether the benefits are paid to any one or more of your dependants, or to your estate. Some superannuation funds provide members with the opportunity to make a ‘binding nomination’. This allows the member to direct the trustee of the superannuation fund to pay the benefit to their estate or to one or more dependants. If you are unsure of how your superannuation or death benefits will be dealt with, or you require further information about binding nominations, we recommend that you seek independent advice from your superannuation provider and/or a suitably qualified legal professional, and, if necessary, consult with a financial advisor.

Life insurance If you have a life insurance policy, and you die in circumstances that lead to a policy payment, the proceeds of your policy do not automatically form part of your estate. Rather, this will depend upon the terms of your insurance policy, and whether you have a nominated death beneficiary under the policy. If you are unsure of what happens to your life insurance if you die, we recommend seeking independent financial advice.

Exclusions – what is not included in this Will?

The following exclusions apply to Safewill. If you are unsure whether the below apply to your circumstances or are required in your Will, we recommend seeking independent legal advice:

Scope of Will and General Features

  • This Will applies to Australian assets only.
  • This Will revokes any and all previous Australian Wills, Codicils and other testamentary docume­nts.
  • This Will applies to joint assets owned as tenant-in common and not as joint tenants that transfer independently under survivorship rules (to the other joint owner automatically).
  • This Will applies to assets legally or beneficially owned by you, and not to assets owned on trust for you as absolute beneficial owner as against the trustee.
  • This Will does not permit the establishment of a testamentary trust, and the Will Maker should obtain independent legal advice regarding the establishment of any testamentary trusts.
  • This Will does not permit gifts to be made in contemplation of marriage, registering a relationship or entering a de facto relationship or ending a marriage, registered relationship or de facto relationship.
  • This Will does not permit you to expressly exclude any potential beneficiary from benefiting under the estate.
  • This Will does not override or terminate any collateral contract to leave the estate to particular people.
  • This Will does not preclude any person from applying to court for family testator maintenance and support.
  • This will does not deal with organ donation.

Executors

  • This Will does not permit more than two joint executors to act or the appointment of multiple or successor substitute executors.
  • This Will does not permit the appointment of a private company or public trustee company as the executor.
  • This Will permits executors interested under the Will as a beneficiary to participation in executor and trustee decisions despite any actual or potential conflict of interest.
  • This Will does not permit non-professional executors to charge fees or any executor or trustee to charge commission for acting as executor and trustee.

Guardianship

  • This Will does not permit a guardian and carer to be appointed for a child if the other parent is living.
  • This Will grants the guardian care of the child.
  • This Will does not impose any obligation on the person accepting care of a pet to continue to care for that pet for any period or at all.
  • This Will does not provide the person accepting care of a pet with any gift or money to defray the costs or ensure the continued care of a pet for any period or at all and the Will Maker should obtain advice about imposing such conditions of care for the pet.

Gifts & Residue Estate

  • This Will gifts all property subject to any liabilities attaching to the property and the beneficiary must accept the liability if accepting the property.
  • All gifts under this Will take effect upon the death of the Will Maker where there is no statutory requirement for a beneficiary to survive the Will Maker by 30 days.
  • All gifts under this Will are absolute and are not subject to divestment for satisfying or failing to satisfy any requirement.
  • All gifts under this will to multiple beneficiaries are held as tenants-in-common and not as joint tenants so the rules of survivorship do not apply to the gifts
  • The Will Maker should obtain Federal and State or Territory taxation and financial advice regarding any gifts under this Will before signing this Will.
  • This Will does not override any binding death benefit nomination for superannuation or insurance policy proceeds.
  • This Will holds and distributes any concessional taxed superannuation death benefits or trauma or disablement insurance policy proceeds equally for the statutory dependants/relatives to retain concessional tax status
  • A gift to an unincorporated association may be ineffective under State and Territory laws
  • This Will does not permit you to set-off, forgive or assign any debt or secured debts owed to you
  • This Will does not permit you to grant an annuity gift
  • This Will does not permit you to nominate a successor appointor or guardian officer or similar protector of a related trust or officer holder of a related private company
  • This Will does not permit you to grant an option or right to purchase any estate assets to a person
  • This Will does not permit you to grant a right to occupy or life interest in any real estate asset to a person
  • All gifts to a person under the age of 18 years old are conditional on the person attaining 18 years old before vesting

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