The prospect of drafting your own Will, without the hassle and expense of involving a Lawyer, can seem enticing for many people. How hard can it be, right?
The perceived time and money saved by using “Do it Yourself” Will kits can – and often will – be outweighed by the time, disruption, stress and expense involved down the track:
Fixing mistakes in the Will;
Resolving disputes about the Will; and
Trying to have the Will administered.
Unsurprisingly, a poorly drafted Will can result in thousands of dollars being spent with applications to the Court to have the Will interpreted and rectified. Who wants that?
Will kits are fraught with risk and danger, even if you think you have a relatively small or easy Estate.
Just a few examples of these dangers and pitfalls include:-
1. Wills are technical documents that require strict formalities in order to be valid. A Will that is incorrectly witnessed is a simple and easy oversight to make, but it renders the Will invalid;
2. Will kits are often too generic in nature, and do not allow for consideration of complex arrangements and wishes, such as blended families, tax implications and company, trust and business assets;
3. A poorly-worded Will can lead to ambiguity and confusion about your wishes, resulting in unnecessary expense, disruption and delay when it comes time to administer the Will;
4. Subsequent alterations to the Will can lead to added ambiguity and confusion;
5. In Queensland, once you get married, any existing Will becomes invalid (unless it was made in 'contemplation of marriage');
6. In Queensland, divorce also affects distributions to, and appointments of, former spouses.
7. There may be reasons why a Will Maker intends for certain Beneficiaries to receive higher or lower distributions than other Beneficiaries, but if the Will isn’t properly drafted, this can lead to disputes between family members and Family Provision claims on the Estate;
8. Partial intestacy can occur if some beneficiaries/classes of beneficiaries die before the Will Maker, unless appropriate residual clauses are included in the Will;
9. Significant issues will arise if the Will Maker mistakenly tries to dispose of property/assets that are not capable of forming part of the Estate (for example, life insurance benefits, jointly-owned property, assets owned by companies and assets owned by trust assets), or if they fail to dispose of their entire Estate;
These issues can be avoided by consulting an experienced and qualified Succession Lawyer when it comes time to draft or update your Will.
Part 2 of this article will explore the ways that an experienced and qualified Succession Lawyer can assist you to avoid these dangers and pitfalls.
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