Wills and estate planning is something that affect us all at some stage of our lives. Either you need one personally or you may be a beneficiary or an executor at some stage.
Wills are often a delicate subject with many people as it requires us to make arrangements for our own mortality. Something most of us would often prefer not to dwell on. However, neglecting to leave proper arrangements in place, such as a will, only furthers unpleasantness for those that survive us.
Every person should have a will and our will lawyers debunk some myths and common misconceptions about Wills.
A staggering number of Australians do not hold a current Will. Whether it is the expense, the hassle or the false idea that you do not own enough to warrant a Will, this decision leaves a great number of people’s estates vulnerable to legal claims and challenges. Not to mention exorbitant fees charged by Government authorities to administer an estate.
If you pass away without creating a Will, it means that you have passed away intestate and the rules of intestacy will apply to your estate.
The rules of intestacy are not entirely straightforward and will create unnecessary stress and hardship on your loved ones as they attempt to manage and distribute your estate.
While it is possible to go it alone we strongly recommend against this route. A Will is an incredibly important legal document and one minor mistake can be disastrous. Mistakes can occur not only when drafting out your wishes, but also during the acts of signing, witnessing and storing your Will.
An error in your Will may mean that your estate is not distributed according to your wishes. Your Will may be contested or found to be entirely invalid. This will then put your loved ones under further pressure following your passing.
To avoid any chance of unnecessary stress and hardship on your family during an already difficult time, it is best to reach out for professional help.
Will Lawyers understand not only how to draft a will but how to draft it to avoid disputes after you pass away.
Even where you leave specific instructions to your executor not to share the contents of your Will, they are bound by law to provide copies of your Will under specific circumstances.
Pursuant to Victorian Law, your executor must allow the following people to inspect your Will upon request:
(a) anyone named or referred to in your Will;
(b) any beneficiaries named in your previous Wills;
(c) your spouse or domestic partner;
(d) your parent, guardian or children;
(e) anyone who would have been entitled to a share of your estate had you passed away with no Will in place; and
(f) any person with a claim at law or in equity against your estate and who produces evidence of their claim.
Your executor is legally bound to carry out your legal wishes as outlined in your Will. It is important that both you and your executor understand all of their obligations when making your Will.
Where an executor “goes rogue” and is no longer acting in line with their obligations, it may create grounds for a claim against your estate.
It is sometimes thought that where you have included someone in your Will, they are no longer able to contest the Will. With this in mind, it is common for some people to leave nominal amounts to relatives and acquaintances who they would otherwise wish to exclude from their estate.
Ultimately, these actions serve only to build resentment and frustration and, in many cases, can spark a relative or acquaintance to contest your Will and make a claim to your estate. This is known as a Part IV Family Maintenance Claim.
If you do wish to exclude a specific person from your Will it is best to seek legal advice.
There are number of reasons why you might wish to exclude someone from your Will. However, the simple act of leaving them off your Will does not prevent a person from contesting it and making a claim to your estate. When a person does make a claim, the Court will consider:
(a) your wishes as expressed in your Will;
(b) any other evidence of the reasoning behind your decision to exclude said person from the Will; and
(c) any other evidence of the deceased’s intentions with respect to you, including the nature of the relationship between yourself and the deceased; obligations and responsibilities between you; and the character and conduct of the person contesting the Will.
We recommend you obtain legal advice as to what evidence you can leave which explains the reasoning for your decision to exclude someone from your Will.
Pop culture portrays people who contest Wills as money hungry villains however, this could not be further from the truth. Victorian Law is written specifically to provide the option to contest a Will as there are valid reasons for a person to contest a Will. These reasons include but are not limited to:
(a) The Will was made in suspicious circumstances. This is often the case where capacity and undue influence issues are at play and can be apparent where the persons involved in making the will are receiving a substantial portion (or the hole of) the estate.
(b) The Will has not been updated for a number of years and therefore does accurately reflect the deceased’s wishes.
(c) There are concerns regarding the deceased’s capacity at the time their final Will was made. Capacity is not limited to mental capacity and include situations where the deceased could not have possibly had knowledge of their Will due to loss of eyesight or issues with regard to literacy;
(d) Financial hardship, including where a person who ought to have relied upon a share of the Estate has “missed out” and is experiencing sever hardship, and the estate is large enough to warrant the provision of a share to said person.
Making a will with an expert will lawyer is a simple process. We often help people who have a blended family, unrelated dependents or other circumstances where they require specific competent legal advice.
Complex assets also make drafting a will more complex as the value of different assets can fluctuate. Our lawyers will assess your circumstance to ensure that your will reflects your wishes and minimises the risk of an estate claim after your death.
Spending the time and effort now to ensure that you have a Will in place will make it much easier for your loved ones. The process of administering an estate with a valid will in place is much simpler and easier during a time of grief.
Contact one of our lawyers today to discuss making a will on 1300 907 335 or complete an online enquiry form and we return your call promptly.
Please note: The above is not intended to be legal advice. Every circumstance is different. Always seek legal advice in relation to your individual situation.
© PCL Lawyers 2022
Chris is a passionate family lawyer assisting his clients to resolve their dispute in a professional, timely and cost-effective manner....