Short term gain for long term pain: The pitfalls of using a will kit

4 December 2018|Finance| Off Comments off on Short term gain for long term pain: The pitfalls of using a will kit|

By Zac Nicholson

Law Society Elder and Succession Law Committee

 

A WILL is the most important document you will ever make – if you get it wrong, you won’t be there to change it.

A valid and clearly drafted Will ensures that assets you have painstakingly accumulated over your lifetime pass in an orderly, and tax effective, way to the people or charities that you wish to support.

Despite the importance of having a valid Will there has, in recent years, been a growing use of so called “will kit” Wills.

These kits are readily available either online or from various outlets such as newsagents or post offices.

They allow a person to make their own Will for a fraction of the cost of consulting a lawyer.

Choice magazine’s Uta Minh recently reviewed five commonly available will kits in an article dated 23 March 2016 (available at www.choice.com.au) and found that while will kits can be an excellent research tool and can help you write a Will, they cannot adequately handle complex situations such as self-managed superannuation funds and blended families.

She concluded that making sure that your loved ones were provided for is far too important a matter to leave to chance.

Issues with will kit or self-made Wills are typically not discovered until after the maker of the Will has died.

For this reason, it is only now as the often asset rich baby boomers begin to pass on that the extent of the use of will kits (and problems that commonly arise with them) is being discovered.

A common issue that arises is the failure to comply with the strict legal formalities for the signing and witnessing of Wills.

This invariably means a costly application to the Supreme Court for an order as to whether or not the document is a valid Will.

Some of the other problems that have arisen with will kit Wills include:

 

A failure to appoint executors.

A Will in which two of the Will makers children witnessed her signature and therefore were not entitled to any benefit until specific Court orders were obtained.

Where the description of a gift or the identity of the person that gift is intended to go is unclear.

The gifting of an asset such as a property or money in a bank account, but that gift failing when the asset is disposed of prior to death or was jointly owned with another person and therefore passed automatically to the surviving owner.

The appointment of someone as an executor who may not have the financial ability to perform that role or is a similar age to the Will maker and dies before the will maker.

 

Discovering these problems with a Will after the maker of the Will’s death and taking the necessary steps to rectify the issues through the Supreme Court can involve significant legal and related costs.

These costs invariably fall on the deceased’s estate and, ultimately, the intended beneficiaries.

In addition to the costs, there will also be delay in the administration of the estate and additional stress to the executors.

Lastly, there is also the potential for a dispute between beneficiaries where none would have existed had there been a clear, valid and unambiguously drafted Will.

These issues can be avoided with the engagement of an appropriate legal specialist to undertake the process of estate planning.

True estate planning, to use a much-derided expression, involves a “holistic approach.”

It is not just making a Will.

It involves a consideration of a person’s circumstances, particularly the extent of assets that may or may not be able to be passed through a Will such as superannuation, life insurance and assets in family trusts.

Lastly, and particularly where a so called “blended family” is involved, estate planning often involves providing advice on the risk of a challenge being made to an estate under the ‘Testator’s Family Maintenance Act 1912’ and strategies to reduce the risk of a successful challenge being made.

The extent of the issues with will kits, and the significant costs (always monetary but often also emotional in attempting to resolve them through the Court system), suggests that the short-term gain may not be worth the long-term pain when it comes to will kit Wills.

To find a lawyer to assist you with your estate planning needs, visit the Law Society ‘Find a Law Firm’, register at https://lst.org.au/ or phone 6234 4133.

The Elder and Succession Law Committee is made up of experienced wills and estates legal practitioners.

For further details, visit https://lst.org.au/for-lawyers/committees/elder-law/

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About the Author: Glenorchy Gazette

The Glenorchy Gazette is your monthly community newspaper, reaching over 24,000 homes and businesses in the Glenorchy municipality. It is the product of Nicolas Turner, Justine Brazil, Ben Hope, Simon Andrews, Tobias Hinds and guest contributors, with support from advertisers.

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