Many people mistakenly believe that if you don’t have a Will, your estate goes to the government. In fact, every State has laws which provide for your family, if you die without a valid Will.
Although these laws are not ideal, they sometimes work in simple situations. Whereas, having a poorly prepared Will can sometimes be worse and more costly to your family. It can cost a lot of money to have a Will validated or interpreted by the Court.
Poor selection of executors
The trust that you place in your executors to administer the Will correctly can have huge consequences. Here are some poor examples of the choice of executors that led to longer and more costly estate administration:
- Selecting people that did not get along, and forcing them to work together,
- Selecting someone who does not cope with administrative tasks and buries their head in the sand when something is difficult,
- Selecting someone who has a conflict of interest and believes they are owed money by you,
- Selecting someone who has an emotional dispute with a beneficiary,
- Selecting someone who is living in your residence without a rental agreement, and has no intention of leaving.
Poor wording
The law around the wording of Wills has developed over hundreds of years, and is very specific (and not plain English). When a Will kit is used, or someone who doesn’t understand the legal construction of Wills prepares a Will, there can be huge and costly consequences. Here are some examples of poorly worded gifts that fail:
- Uncertainty about a proposed charity where the official name and ABN or address were not used, and there was a fight between three charities as to whether it was meant to be them or not,
- Being too specific about the motor vehicle being gifted, but the motor vehicle had been upgraded since the Will, and so the motor vehicle at death was different than described and the gift failed,
- Leaving out the word ‘my’, so the estate was compelled to buy 50 BHP shares for a beneficiary because they were no longer owned at the date of death, and
- Not checking the spelling of a relative’s name, or referring to them in the right context (step-nephew or nephew-in-law) and there being confusion about who the beneficiary was supposed to be.
Poor division of estate
When attention is not given to the detail in the Will, your residuary estate may not end up with the beneficiaries that you intend. Here are some examples:
- An estate divided into 8 parts, and only giving 7 parts away to named beneficiaries, leaving one-eighth of the estate to be dealt with under the laws of intestacy;
- If you leave a gift to your child, but they die before you, the law automatically provides that their children should get their part, including their step-children whom you may not like or want to benefit (you need to exclude grandchildren or step-children if you don’t want them to inherit)
- Wanting your children’s inheritance to be protected in a testamentary discretionary trusts, and going to the effort of including one in your Will, but then the Will is drafted to say that the gift to your children is ‘absolutely’ so the trusts have no effect.
Taking the time to get your Will prepared correctly can ensure your wishes will be fulfilled, and that your family won’t have expensive Court costs to fix a poorly prepared Will.
Contact our Accredited Specialist Jacqueline Brauman to discuss you needs.
