Wills: they protect more than just your stuff

Published: 01 Jul 2021

When we think Wills, we usually think possessions. Who’ll get what when we die, who won’t, how much – that kind of thing

But Wills are about more than that. They involve planning for who’ll look after your children, who’ll continue to care for ageing family members, and what will happen to your beloved pets.

It’s also about your digital afterlife: what do you want to happen to your digital assets like your emails and social media profiles?

The fact is it’s just not enough to verbally tell someone what you want to happen: that just won’t stand up in court if contested. An estate challenge can be extremely emotional and expensive, and will actually diminish the value of your estate.

Many people wait for a major life event such as the birth of a child or a divorce before organising a Will or making changes. But legal experts recommend reviewing your Will every 3 to 5 years.

If it’s been longer than that, then it’s a good idea to take another look right now. A lot can happen in a year.

Here are some frequently asked questions:

How old do I need to be to make a Will?

Generally, you must be over 18 to make a Will. But the fact is, a Will is important at any age. Regardless of how few assets you own, passing away without a Will can put additional stress on your family and friends, and can increase the cost of administering your estate. You also leave wide open the possibility for disputes over your estate – increasing the stress and the cost even further.

What is testamentary capacity and why does it matter?

This is a common legal phrase often used in the discussion of Wills. An individual making a Will must have testamentary capacity, meaning they must be of sound mind to understand and consent to the preparation and finalisation of a Will.

With the average Australian now living to 82, this is a growing topic of debate between the legal and medical fields. In light of evolving medical research, a person with dementia (a declining mental condition), for example, will not necessarily be exempt from having testamentary capacity. Professionals would need to properly explore whether they were capable at the time of making the Will, particularly in the instance of early diagnosis. In all cases, reliable evidence – namely medical reports – will be key to any Will challenges.

Is my superannuation covered in my Will?

The simple answer is no. Technically your super money is held for you in a trust. So, because your Will only covers assets you own in your name, your super isn’t covered.

However, you can leave your super to your estate if the trustee of your super fund will allow it. (Energy Super does allow this, but not all super funds do.) This is particularly useful if the person you want your super to go to – i.e. your beneficiary – isn’t eligible under super law to receive it when you die (for example, a charity or a friend that’s not a dependant).

To do this, you could make a binding nomination, which instructs the super fund trustee to pay your super according to your wishes. Remember: the whole point of a Will is to give you some surety about what will happen to your assets when you die. The binding nomination goes some way to providing that surety.

Even if you have a non-binding nomination, your Will can still be used by the super fund trustee to work out how your super should be paid. In this case, the trustee may look at your Will, assets and the needs of your dependants to work out how to distribute your super benefit.

It makes sense that the more specific your Will is, the better it will serve as a guide to your wishes when you die. See our Nominating Beneficiaries Guide.

What happens to my digital assets like my Facebook profile?

It’s becoming increasingly important to list your digital assets and make a decision about what to do with them. Digital assets include email content, photos, social media profiles, files and even online businesses.

Do you want your accounts closed? Special personal emails and photos distributed to loved ones? Your online business closed? You’ll need to record your wishes.

Can I make a Will online?

Yes and no. While they are legitimate, it’s advisable to have your Will reviewed by a legal professional, like your solicitor. This ensures the right legal terms are used and that the Will is valid.

If your estate is particularly complex with assets and investments, don’t risk getting it wrong – speak to a legal expert from the start.

And if I don’t make a Will?

If you die without a valid Will, you’re considered intestate. Typically, the State government will take sole responsibility of the decision-making and use a general formula to divide assets and make decisions on your behalf (laws vary between states).

Why risk it?

Will conditions are State-specific so check with your local Public Trustee Office in your State. Any advice contained in this article is general in nature and not specific to your particular circumstances. You should consider your financial situation before acting on the advice. You should also obtain and consider the Product Disclosure Statement (PDS) before making an investment decision. ESI Financial Services Pty Ltd (ABN 93 101 428 782) (AFSL 224952) is a wholly owned entity of LGIAsuper (ABN 23 053 121 564) (RSE R1000160).  LGIAsuper Trustee (ABN 94 085 088 484) (AFSL 230511) as trustee for LGIAsuper.