Warwick Gilbertson: When you did your Will, did you read it and did you understand it? Hi, I’m Warwick Gilbertson. Today I’d like to talk about capacity in regard to making a Will, and how that relates to whether it’s going to be effective. A Will is a particular document, which we’re all aware, in which we leave instructions of how our assets are going to be given to our beneficiaries such as our children or our spouse. There’s a particular requirement of the law in regard to knowing what you’re doing.

There are four elements in essence. You’ve got to know that you’re making a Will, which is pretty obvious. Secondly, you have to know what your assets are, that you’re able to leave and hand on. Sometimes that’s a bit of a difficult question. Thirdly, you have to know those people whom you need to think about and provide for in your Will. The final and often the big difficulty one is, are you able to differentiate between those people who have claimed to be entitled to more or other? Can we treat them together? What is it?

Those are the factors you need to be aware of, and all of those need to be in existence and not adversely affected by what the law calls a disease of the mind. You and I understand a disease of the mind to be something like a mental illness, or as you get older dementia, Alzheimer’s, that we’re all aware of.

When it comes to Wills, there is a time clock. To be able to make a Will that is effective, you’ve got to be able to understand those four factors I’ve talked about. In addition, after all of that, you also need to understand what your Will says and how it affects the handing over of the asset you are handing on. Do you understand that when you leave your house to your wife or to your husband, that’s actually what is going to happen? Or if you want to leave some shares that you have, that they’ve got to go to child A, like speaking about Mary, that Mary will get those shares, and they’re not going to go to Bob, who’s your son? Do you understand that that’s how the Will operates, and will it operate that way?

Now, that’s pretty obvious and people might say, “Yes, I can understand that,” but there comes a time when depending on how complex your Will is, or how complex your assets are, it may be a challenge. You need to think about if you own assets in a company, in a trust, if you have investments that are managed by a financial planner, you’ve got superannuation, how do they all interact with your Will? Do you have the capacity to understand how your Will deals with those? There is a time clock in each of our heads when it comes to planning for the future. You need to, with a Will, be able to understand what you’re doing, what you’re providing for, and how that will actually operate when you die.

The law calls that last part having sufficient knowledge and approval. If you’re wondering after hearing what I’ve said, what you should do, or whether in fact the Will that you’ve done is valid or how you want to deal with it in the future, please feel free to contact us at Turnbull Hill. We understand what is required. We will explain that to you, and then you will be able to ensure that the Will you make will be valid and enforceable going forward.

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