When it comes to preparing Wills and making decisions about where a person’s assets are to be left after they die, there is, like most things these days, the temptation to shop around for the cheapest price. “Will Kits” can be purchased from newsagents for just over the cost of a takeaway meal and of course the good old do it yourself is blissfully free! Excluding the Lawyers from the exercise however, can lead to serious mistakes that typically are only discovered once the Willmaker has died or becomes incapacitated, making them impossible to fix. Here are some examples of the sorts of mistakes that can occur:
- Not having a Will at all – many people think it is not necessary to have a Will, that the family and relatives and the Lawyers can sort it out afterwards, they couldn’t be bothered to do it now. Dying without a Will however, in many circumstances will immediately submit the deceased’s love ones to a complicated legal exercise called “applying for Letters of Administration” before anything can be done with the administration of the estate. This process can cost over $3,000.00 and add an additional three to six months to the resolution of the deceased’s estate.
- Pin or clip marks on the Will – a common scenario is the Will maker does up the Will but then attaches to the Will a supplementary document that for instance talks about how jewellery or family heirlooms are to be distributed. Over time though, the attachment might pull away from the Will or an updated attachment is prepared and reattached. If the Will however, has a pin mark or a clip mark or even an imprint of where a pin or clip might previously have been, then it becomes mandatory for the Will to first be “proved” as the legitimate last Will and Testament of the deceased before anything can be done with the administration of the estate. The proving of the Will is again done through a complicated process called “applying for Probate” which again can cost in excess of $3,000.00 and add three to six months to the administration of the estate.
- Incorrect witnessing of the Will – to be valid, the Will must be witnessed by two people who are over the age of 18 and have full mental capacity. The witnesses must be present at all times when the Willmaker is signing the Will and whilst each other are doing the witnessing. Any failure of the witnesses to follow this process could render the Will completely invalid or again, require it to be proved before it can be acted on. Again, submitting the estate to greater expense and uncertainty. If any of the witnesses are themselves beneficiaries named in the Will then those persons will become disqualified from taking the benefits which the Will was supposed to give them.
- Choice of Executor – the Executor is the person who is responsible for gathering in all of the deceased’s estate and seeing to it that the assets are being distributed out to the named beneficiaries. The role seems simple enough but there can be many challenging decisions that need to be made in this exercise and if an Executor is named who is not up to the task, mistakes can be made that will see the deceased’s hard earned assets lost to tax that could have been avoided, property theft or destruction or just poor investment decisions.
- A Will that provokes litigation – if a blood relative, a spouse or a dependent are not adequately provided for under a Will then those persons have a right to sue the estate after the Willmaker’s death which again will embroil the estate in thousands of dollars of legal fees and many months, if not years, of delay whilst the dispute is being sorted out through the Courts.
- Undoable bequests – if the Willmaker still owes debts at the time of their death and/or those debts are secured against particular assets, such as a mortgage against a house or a lease on a motor vehicle, then it is important to consider from where those liabilities are to be discharged. A decision to leave a house to a loved one, for instance, might completely fail if that person or persons are unable to continue to service a mortgage debt and the money that might have been used to pay it off is left to some alternate person named elsewhere in the Will.
- Consideration of Life Policies and Superannuation Funds – entitlements that are typically paid out under life policies and superannuation funds in many cases completely stand outside a Will unless special provisions have been made with both the relevant Fund partnered with special terms in the Will to deal with them. In many scenarios it is actually more convenient to leave the funds outside the Will so that they can be dealt with separately and independently. The wrong decisions however, on these points can again prove costly and in many cases impossible to fix.
To have a Will prepared with a Lawyer will typically cost hundreds of dollars which of course is more than the price of Will Kits or the good old do it yourself jobs. With the Lawyer however, mistakes such as those set out above and many more can be avoided and consequently it really does make very good sense to spend a few dollars up front to avoid the risk of leaving to the family to have to spend a great deal more money down the track and at a time when the Willmaker is no longer around to provide any assistance whatsoever to fixing up the mess.
Michael Zande is the Principal of Zande Law, Solicitors with 20 years experience in practice. Michael and his team have had extensive experience in drafting of Wills and Administration of Deceased Estates. Please feel free to review our firm and staff profiles at www.zandelaw.com.au
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.