Why Do We Use Professionals?
When you have your car serviced, while you may think you know what’s wrong or may even have a go at trying to fix it yourself, let’s face it: professionals, like mechanics, study so that they can diagnose and fix your car because they have learned the skills to do so. Choosing a hairdresser to cut and dye your hair is same thing, so why do we continue to think we can write our own Will or that we can copy a mate’s Will, change the name, and everything will be fine?
As lawyers we find this question comes up frequently, especially with the proliferation of ‘DIY’ options.
Here we take a look at real*, simple and seemingly harmless oversights that can occur when there is no legal support involved. These very simple examples can cause serious headaches for your friends and family after you’re gone, so why would you chance it?
1: The Absent Executor
When writing a Will, one of the first things you need to do is decide who to appoint as your Executor.
John and Jane were married with no children, and John decided to make a Will himself leaving everything to Jane or, if Jane were to pass away before him, to John’s parents. As Jane was going to receive everything, John appointed Jane as his Executor.
Unfortunately, Jane passed away and then several months later John also passed away. When John’s parents sought to deal with his Estate, although John’s Will was otherwise valid, it failed to appoint an Executor as Jane had passed away.
2: The Incapable Executor
Let’s take the same circumstances as above, but instead of solely appointing Jane, in this case John appoints Jane as his primary Executor, but in the event that Jane was to pass away before him, he appointed his father Jim as his alternate Executor.
Unfortunately, Jane developed dementia prior to John passing away. When the time came to deal with John’s Estate, Jim sought to act as Executor as Jane lacked the necessary capacity to act, but while the Will allowed Jim to act if Jane passed away before John, it failed to contemplate the possibility that Jane would be alive but incapable of acting.
3: Incomplete Dispositions
A Will needs to cover any and all assets the form part of your Estate, and as a result will usually be written in specific yet broad terms.
Amy had recently purchased her first property and decided to make a Will to ensure the property would go to her mother when she died. She specified that her property at 123 High Street, Armadale was to be given to her mother and, given that she didn't have any other major assets, she left the Will at that.
Subsequently, Amy went through some major life changes and had to sell the property and purchase a smaller, cheaper property. Shortly after this, Amy passed away without making a new Will. When her Executor sought to distribute her Estate, the gift to her mother failed as the property Amy had gifted to her no longer belonged to Amy. Additionally, as Amy had sold and purchased a cheaper property, she had a substantial amount of money remaining in her bank account from the sale proceeds of the first property, which was also not covered by the Will.
4: Second-to-last Will and Testament
The nature of a 'Last Will and Testament' requires that the most recent Will is the only valid Will, and this is accomplished by revoking all previous Wills when you make a new Will.
Paul had a Will prepared by a lawyer, and after a few life changes, he decided he needed to make a new Will. He didn't want to spend the money having a lawyer prepare the Will, so he decided to do it himself. Paul largely copied the clauses from his previous Will prepared by a lawyer, but he neglected to include a revocation clause, revoking all previous Wills.
When Paul passed away, his Executor sought to obtain a grant of Probate, but as the later Will failed to revoke the earlier Will, Paul's Executor had to submit BOTH Wills for Probate to read the earlier Will in conjunction with the later Will and try to interpret what the correct wishes were.
5: Informal Execution
When a lawyer prepares and witnesses the signing of a Will, we make detailed file notes of the meeting and what occurred.
Steph made her own Will, and when the time came to execute the Will, she arranged for her neighbours to come over to her house and witness the Will. After the Will had been executed, Steph and her neighbours were having coffee and Steph knocked her cup and spilled some coffee on the bottom corner of the Will. The coffee slightly smudged the signatures and some of the wording, but as it was all still legible, Steph wiped the coffee off and left it at that.
Many years later, Steph passed away without making a new Will. When her Executor sought to obtain a grant of Probate, they were required to submit evidence to explain the stain and smudging on the Will in the form of an Affidavit from one of the witnesses to the Will. As many years had passed, the Executor had a very hard time tracking down Steph's former neighbours, and when they finally managed to do so the neighbours had no recollection of what had occurred to cause the stain.
6: Allegations of Duress
Lawyers have a responsibility to ensure that a person making a Will fully understands and appreciates the consequences of their Will, and that the Will reflects the genuine wishes of the Will-maker.
Emmett had two sons, Oliver and Spencer. When Emmett was elderly, Oliver had a falling out with his brother Spencer and wrote a new Will for Emmett appointing himself (Oliver) as the sole Executor and leaving his father’s entire Estate to himself (Oliver). Emmett did not really understand why he was signing a new Will, but Oliver convinced him to sign it nonetheless.
When Emmett passed away, Spencer discovered that he had been left out of the Will completely. Spencer was certain that Oliver had forced his father (Emmett) to sign a new Will against his wishes, but did not have any way to prove this.
So, should you have a lawyer write your Will?
While some of our examples may seem like obvious oversights, they are just a few of the many things that can be easily overlooked. If you take a moment to consider how a simple oversight can impact on your wishes not being followed, it makes sense to use a professional, in this case a Wills & Estates lawyer.
At Burke & Associates, we have the experience and expertise, but more importantly we take the time to collaborate with our clients so they fully understand the importance and implications of their decisions when preparing their Will. If it’s YOUR WILL and YOUR WISHES, we are there to ensure they are protected.
You turn to professionals for assistance when you need to because those professionals have undertaken years of training and are formally recognised for doing so, and lawyers are no different, especially when it comes to preparing something as important as your Will.
For more information, or to make an appointment with our Wills & Estates Division, please contact Rohani Bixler, Luke Palmer or Helen Andreou.
*Real names and identifying details have been changed to ensure anonymity.
Insight written by Luke Palmer