Make a proper Will for your loved ones sake.
If you’re thinking about getting your affairs in order, then you may be tempted to just pop down the Post Office to pick up a $50 Will Kit. It’s quick, easy and much cheaper than seeing a lawyer.
Well Peter Brock, the Bathurst 1000 legend, had the exact same thought, and is a great example of the issues we often see with a Will Kit or casually made Will.
Brock made his first Will using a Will Kit in 2003. He filled in the name of his executor, signed the document and told his then wife Bev to fill in the rest of the form at the time of his death with whatever details she considered fitting. Wonderfully debonair, but which had repercussions later.
The document was never completed.
After divorcing and meeting his new partner Julie in 2006, he started to make another Will, also using a Will Kit. This time he failed to complete the forms, after his PA, very sensibly, thought his affairs were too complicated to proceed without legal advice.
Unfortunately, Peter was killed during a race a few months later.
The court decided that his 2003 Will was valid, but since it had no details about how to dispose of his estate, the court decided the estate would be administered according to the laws of intestacy – meaning as though he had died without making a Will.
Since this meant that his two biological children would get everything, leaving out his step-son and new partner Julie, it should come as no surprise to you that a lengthy, and costly court battle ensued to decide who got what.
His ex-wife Bev, summed it all up by saying “I would hope people out there take care of their legal affairs, and sign their Wills and get all the details done properly.”
What are the problems?
Estate planning is just not that simple. You spend most of your life working and building up your wealth to look after your family. You spend thousands with banks and financial advisers. You pay tens of thousands in insurance premiums to protect your assets. You may even spend thousands on your hair during your lifetime. But when it comes to passing your hard earned assets to your loved ones – some of us think just $50 should cover it…
So here are some common problems we have encountered:
- The Will Kit form is not fully completed, and you have left some important scetions blank. This is fair enough. The correct answers to even the most simple questions on a Will Kit are not obvious to most people.
- You have not witnessed and signed the Will correctly. Think about this for a minute – even if you are an average Australian, your estate is probably worth well over $1m. If you went to a bank and tried to withdraw $1m, what do you think the bank would require? They would want to see multiple forms of ID. They would want your request witnessed by someone who knew what they were doing. They keep records to prove that it’s really you. Well, your Will is like a big cheque to your beneficiaries, and the law in each State of Australia has very strict rules to ensure that it was actually you who signed the Will. And if you don’t follow these rules the court will need to make extra investigations which will cost a lot of time and money.
- You try to give away assets in your Will that you do not actually own. These days people hold assets in various different trusts and Superannuation funds. You can’t give away assets that you do not hold in your own personal name. So assets in a family trust and in your Super need to be managed in a different way by you.
- Your intentions in your Will no longer apply. For instance, you make a Will at a certain point in time, but things keep changing from that point onwards. You may sell your car, paintings, jewellery, move houses, have more kids, get divorced. Not only that, your beneficiaries may die, get married, divorced or become estranged. You get the idea? For example, let’s say you give a specific gift to someone who dies before you do. Who gets the gift? Their kids? Not unless you said so. What happens if you haven’t named anyone to get the gift? Part of your estate will be deemed intestate, possibly costing your beneficiaries several thousand dollars in fees.
- You have no adjustment clause in your Will that can help minimise stamp duty, taxes and transfer fees to maximise your estate when you pass away.
- You do not take into account tricky family situations such as a blended family or estranged children. This invariably results in someone getting included or excluded when they shouldn’t be. This can lead to expensive court actions, and cause a great deal of upset and distress between your loved ones.
- Your pen runs out half-way through making your Will, and you have to complete the rest of the form or sign it using a different pen. When you die, the Probate Registry will ask questions about this, and may require an affidavit from the witnesses to your Will (yes, you did get witnesses didn’t you?) to confirm that no one changed the contents of the Will after you signed it. This is a considerable problem if the witnesses to your Will have since died, or your Executor cannot find them, or you simply didn’t bother getting your Will properly witnessed.
- The Will is creased, stapled or accidentally ripped when you took it out of the Will Kit booklet. Someone else filled in the details and the writing or ink don’t match. Or you throw away the booklet that came in the kit. The Executor will need to explain all of these to the Probate Registry. And could cost thousands in fees to get processed. We’re not joking.
These are just some of the real life problems we have experienced in getting Will Kit Wills through the Probate Registry, and most importantly, your assets into the hands of the beneficiaries. There are many more things that can, and do, go wrong. If the problems are not fixed before you pass away, then dealing with your estate after your death is likely to be much more complicated and expensive, for the people you leave behind.
The costs you save by using a $50 Will Kit, are often just passed on exponentially to your loved ones when you pass away.
So what’s the sensible alternative?
Well one solution is to become a member of BeQuest Online Wills www.bequestwills.com.au and make your Will online, as soon as possible. This will cover most of your immediate concerns.
Then book the FREE expert lawyer consultation BeQuest offers through Legal Exchange.
You can then discuss your affairs with one of our expert estate planning lawyers, who will help ensure your Will covers your wishes properly, and protects your loved ones.
Alex Tees – Solicitor
Alex is the Principal solicitor for Legal Exchange Solicitors Australia. He has been practising Australian law for more than 30 years, regularly advising on Wills, Estate Planning, Probate, Family Law and Immigration.