19 December 2022

Time to talk turkey and discuss your will this Christmas

| James Coleman
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christmas lunch

Christmas might be a timely opportunity to talk about wills. Photo: Ruizluquepaz, iStock.

It’s Christmas. The family are gathered around for a feast of roast turkey and rather too much pavlova, with presents, coffee and probably more pavlova in the offing. But before grandfather dons the Santa suit and does his best impression of a belly laugh, let’s talk about… wills.

“Wait, what?” you’re thinking.

Okay, maybe not over Christmas lunch. But putting aside the festivities of the season, the reality is you’ve all taken time off from a busy working year to come together as a family. What’s wrong with getting some personal administrative tasks out of the way while you’re at it? And wills are among the most important pieces of personal admin.

Partner at MV Law in Civic, Tanya Herbertson, says everyone should make a will as soon as they turn 18.

“Every adult should have a will to ensure their assets devolve to the people they want to benefit,” she says.

“Not having a will makes things so much harder for the loved ones left behind – the legal process is messier and more expensive.”

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A will legally documents your wishes for when you die. It details who should receive your assets and specific personal items, religious or cultural arrangements for your funeral, and who you want as legal guardian for children.

Without this, your assets will be left in the hands of the intestacy laws of the ACT. This may not get the results you want.

You’ll also want to name an executor and power of attorney. The executor will take responsibility for your will after you die, while someone with power of attorney can act in situations when you’re alive but can’t make decisions independently.

In NSW, “Enduring Guardianship” enables a substitute decision-maker (your guardian) to make medical and personal choices for you if you’ve lost the ability to make them yourself. Another form is needed to cover decisions of a financial nature.

In the ACT, financial, medical and personal matters are combined under the one heading of enduring power of attorney.

Tanya Herbertson

MV Law partner Tanya Herbertson. Photo: MV Law.

DIY or online wills might be tempting and cheap. But Tanya says they can become a false economy.

“They don’t replace proper legal advice and in practice they often cause more problems than they are worth,” she says.

“Getting a will done by a lawyer is also much better because you get the benefit of personalised advice specific to your circumstances, advice about what assets can and can’t be dealt with in your will.

“Lawyers also offer advice about your superannuation death benefits and how to make sure that is also dealt with properly with the use of binding death benefit nominations.”

She says not dealing with the death benefits and life insurance that regularly come with a superannuation account is a common pitfall, especially for young people.

“They often fall into the trap of thinking they don’t have much in the way of assets to worry about, but they forget about the often significant sum of life insurance they often have.”

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Other myths include only one joint will for a husband and wife, or leaving a token item or amount to someone means they won’t be able to make a claim against your estate for more.

You may have crossed the ‘t’s and dotted the ‘i’s already, but that doesn’t mean you’re set for life either. It’s recommended you review your will every three to five years or when circumstances or family situations change a separation or divorce, a new asset or loss of an old one, or the death of your listed executor.

Okay, but why all this over Christmas?

“Christmas often brings family together and offers the opportunity to have some discussions around estate planning,” Tanya says.

“Stop putting off getting your will and enduring power of attorney made or updated, and attend to it while you are taking some leave. You’ll feel relieved knowing you have things in proper order.”

To start your will-making process, contact MV Law


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