The team at Hall & Willcox have provided some valuable insights into wills and why care needs to be taken when they are drafted. Also highlighted are the risks of people who have proceeded down the DIY route.
We have all seen our fair share of DIY disasters, and the repercussions that come from not doing things properly in the first place. Recently we have seen a number of DIY Wills that have unfortunately gone wrong. Often it is the case of someone with best intentions trying to do it themselves, which ultimately ends up creating no end of complications, confusion and costs.
Some common issues include handwritten Wills, not appointing executors, Wills not being witnessed at all or only by one person and Wills not appearing to properly deal with the assets of the estate. These points can all provide a number of different issues and complications.
This generally is not a problem. However, if there are issues in reading or deciphering the handwriting, this can lead to its own interpretation problems.
Trying to work out the meaning of words, who is referred to, and what assets are being gifted can be difficult. This can often lead to disputes over the terms of the Will, and require the executors to obtain advice from the Court regarding the operation of the Will.
The Will did not name an executor
This is not so much of an issue. Where a Will does not name an executor or an executor is named but has died or is unable to act, a person can apply to be appointed as the administrator of the Will. This person is usually the person with the greatest interest in the estate.
However, by not naming an executor, the Willmaker loses the opportunity to choose someone they want to administer their Will. This can lead to conflict over who should act in this role, and require Court assistance if this dispute cannot be resolved.
The Will was only witnessed by one person or not at all
Under the Wills Act 1997 (Vic), when a Will is executed, it must be witnessed by two people. The Court does have the ability to dispense with this requirement, however, there are a number of hurdles that have to be overcome, which can be time consuming and costly. This includes providing evidence to the Court that the document was intended to be a Will by the deceased.
This is often the most difficult issue to overcome. If there is clear evidence that the Willmaker intended the Will to be their last Will, it will assist the process. Further, if all of the beneficiaries of the last Will, and the preceding Will (if any) are adults and agree, they can provide their consent to admit the last document as a Will. This then avoids the need for a Judge to determine this issue.
If there are minors, or someone who will not provide their consent, this issue is more complicated and will require Court involvement. However, even going through the process of speaking with beneficiaries and obtaining consents will take time and increased the complication and cost for the estate.
We often see instances where the Willmaker’s family can benefit from having a properly drafted Will. Aside from avoiding all of the issues we have previously mentioned, it can also allow for proper structures to be put in place to assist vulnerable beneficiaries, people that are at risk through business or professional occupations, and provide tax planning opportunities.
Including options such as a right to occupy the family home, testamentary trusts and superannuation proceeds testamentary trusts that can make a substantial difference for surviving family members.
What often comes out of these situations is that the Willmaker wanted to save time and save money by preparing their own Will. The reality in most cases is that the process to obtain a grant of representation will take longer, put significant strain on family members, and substantially increase costs for a probate application (the title gives you a hint on this).
Sometimes clients can be resistant to having their Wills properly prepared and sometimes clients need to understand why this is a bad idea. This update provides a number of reasons why is it not good to DIY when it comes to Will.
This article was produced by Hall & Willcox 30 July 2018. This is a link to the original article.
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