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Essential Will Information

Date: November 08, 2006

Authors: Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)

Many people today make their own wills and this approach is fraught with danger.  A will is a written declaration that sets out how a person wants their assets to be distributed to their beneficiaries following death.  It is one of the most important documents that anyone will ever execute at any time in their life as it disposes of their entire estate which represents the sum total of all assets at a particular point in time namely, the date of death.  Making a will can be and often is a highly complex task which requires the services of an accomplished draftsman namely a lawyer.  Do-it-Yourself wills are dangerous as they lack the sophistication necessary to properly reflect the true intention of the testator or testatrix and often fail such that the intended beneficiaries do not receive the gift/s referred to in the will.  Cheap wills are exactly that - you only get what you pay for.  How can one size fit all?

Everyone over the age of 18 should have a will drafted by a lawyer to ensure it is valid so your estate can be distributed as quickly and as cheaply as possible in the intended manner.  On death, without a will, your estate is frozen and distribution delayed except for the payment of funeral expenses.  With all wills even the simplest ones there are a number of formal requirements which have to be followed and if not considerable expense may be incurred by the estate to deal with these matters.  Litigation is expensive and the amount to be spent with a solicitor to obtain a valid will pales into insignificance against the cost of litigation which could range from approximately $40,000 to $250,000 in the ordinary course.  Of course considerable costs will also be incurred where there is either a partial or total failure of a will.  

Many people often put aside the necessity to obtain a well drafted will believing that it is unimportant and it is something that can be attended to later on.  Unfortunately when death comes it rarely heralds its approach particularly so in today’s sophisticated society where risks to the person are fair more significant than they have ever been in the past. Why not make a valid will now to avoid uncertainty and the costs associated with either not making a will or drafting something which fails to properly express your true intentions.  We recommend to all who are trying to make provision for the future they should execute the following documentation:

  1. A property drafted will;
  2. An enduring power of attorney which covers all financial decisions;
  3. An enduring guardian which appoints a family member or associate to make all relevant medical decisions;  and
  4. A death benefit nomination settling the superannuation fund beneficiaries.

Contested Wills  ~  Get Proper Advice!

It should be noted that where a valid will has been made it us unlikely that it will be overturned.  Most of the problems involving contested wills depend upon whether the document which purports to be the last will and testament of the deceased is in fact valid.  Essentially the will can be attacked on the following bases: 

  1. it was not the last will and testament of the deceased; 
  2. it does not constitute a valid will as the requisite formalities have not been followed;
  3. the deceased lacked the necessary mental capacity to make a will;
  4. it was altered after it was signed;
  5. it was procured by undue influence or fraud; or
  6. it was revoked.

In all such cases use the services of a competent solicitor to obtain proper advice.

The Executor  ~  Seek Legal Advice!

As matters would have it sometimes there is a change of heart after a person has been nominated as the executor of an estate by a person in their will following the death of the testator/testatrix.  This does not mean that the court cannot be approached and that some other person cannot be appointed to this position.  The role of an executor can be an onerous one as they are charged with the responsibility to administer the financial assets left by the deceased and where they have breached this position of trust and have acted inappropriately they can be sued.  The executor is expected to administer the estate efficiently and competently in accordance with the terms of the will.  With many estates this can be an onerous and time consuming process which may require expert legal assistance so that the executor can meet their legal obligations.  An executor must act with all due despatch particularly in times of a falling market to preserve the value of the estate.  The executor who stands in the shoes of the deceased may be called to defend the terms of the will against dissatisfied family members as well as persons who consider that the deceased was responsible for their welfare under the Family Provisions Act 1982.

The Executor should move as soon as possible to obtain probate to reduce the contingent risks associated with this position to determine the validity of the will, their position as executor and allows claims against the estate to be settled and assets distributed to beneficiaries quickly.  Why take the risk - be better informed and advised - use a competent solicitor. 

Rectification or Intestacy  ~  Don't make a mistake!

Wills which are often drafted by persons other than lawyers are often unclear which means that the executor or a party interested in the estate may have to apply to the court to determine what the deceased's true intention/s were.  Sometimes when wills are drafted by the uninitiated they contain mistakes, and although some can be rectified there are others which cannot.  When this occurs the will may fail as there may be an intestacy which will totally circumvent what the deceased's true intentions were, as persons will be introduced as beneficiaries who were never in their reasonable contemplation of being so, when the deceased was alive.  All questions involving interpretation of a will are dealt with by the equity division of the Supreme Court of NSW which is an extremely expensive way of having one's affairs dealt with after death because the law is either unclear or uncertain as to any of a number of matters which could have been properly addressed had an accomplished lawyer been engaged to attend to them during the course of the deceased's life

Estate Disputes  ~  Make proper provision!

Apart from the matters referred to above a will may be attacked under the Family Provisions Act 1982 NSW to remedy a situation where dependents believe they have not been provided for.  The Act enables an eligible person to apply for a share or a greater share of an estate, however they must establish need and prove that the testator did not make adequate provision for them in the estate for their maintenance, advancement or education in life.  Basically the eligible person is normally concerned with questions of the reasonableness of provision.  Eligible persons are:

  1. The deceased’s spouse at the date of death;
  2. Someone with whom the deceased was living in a domestic relationship;
  3. A child of the deceased person;
  4. A former spouse of the deceased person;
  5. A dependent of the deceased, which may include persons related or unrelated to the deceased, including foster children and persons in a same-sex relationship.

Where an order of the court is being sought to change a will, the court will address whether:

  1. The eligible person has been left without adequate provision for their proper maintenance, education and advancement in life; and
  2. If yes, what provision if any should have been made out of the estate to assist that person?

Technically all claims by an eligible person under the Family Provisions Act 1982 should be made within 18 months of the date of death of the deceased person.  Exception is only available with leave of the court in very limited circumstances.  Realistically all claims should be made well within time to overcome the possibility of the estate having been distributed otherwise the costs to deal with this will be substantial.

Solicitors

Obviously there is a lot to think about whether you be testator or testatrix, executor, beneficiary or a person whom the deceased has overlooked where they were responsible for your welfare.  Irrespective prudence dictates that you obtain competent, independent, legal advice to guide you to your desired outcome.  To this end please call LAC Lawyers on 1300 799 888 for competent, professional assistance.  The costs of using a competent solicitor whether to draft a will, to obtain advice as executor, to avoid mistakes, to challenge it or to seek provision under it are small compared to the risks which you run by going it alone.  In most cases costs are recoverable from the estate on determination.

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