Writing a will is easy right? A valid will must be:
- in writing;
- executed by the will-maker (there are some exceptions here);
- executed by the will-maker in the presence of two or more witnesses present at the same time; and
- attested to by each witness to the will in the presence of the will-maker.
Sounds easy enough. Unfortunately it’s what isn’t in a will which can cause the biggest problems. Some examples include:
Family Provision Claims
It seems claims against estates are happening on a more regular basis than they have in the past. Whilst we can see there is a need for the community to have access to this cause of action it can create significant delay and risks to beneficiaries entitlement to an estate. A solicitor can consider your circumstances, advise how your will may be challenged and how to take appropriate steps to minimise the risk.
Did the will-maker have capacity to make a will? If not their will can be challenged and struck out. A solicitor can help prevent this issue arising in the first place or alternatively provide objective supporting evidence that the will-maker did actually have capacity to make the will.
A common complaint by beneficiaries who have missed out under a will is that the will-maker was unduly influenced. A solicitor will typically interview the will-maker and keep file notes of the circumstances and instructions as a part of the will making process. Those notes can then be used as evidence to prove or disprove this.
Assets of the estate
The assets of the estate will determine what things you need to consider when preparing a will (e.g. are there any intellectual property rights, or access to digital records? Does the will-maker control any trusts or corporations? What steps will need to be taken to ensure any superannuation funds associated with the will-maker will be paid to the correct people?).
A lay will-maker may not be properly aware what the assets of the estate actually are (e.g. Should a loan made to a family member which hasn’t been repaid be collected or forgiven by the estate?).
You can’t gift what you don’t own. Jointly owned assets can be difficult. In some circumstances the will-maker might hold property on trust for another.
A solicitor can guide a will-maker firstly whether an asset forms a part of the estate and how best to deal them.
Safe keeping of Records
In most circumstances your lawyer will keep your original will in safe keeping. Your lawyer may also keep his file and file notes until your death and if appropriate your estate is administered. Those records can be very useful if your will is challenged.
Tax and Duty
Tax and duty consequences should always be considered by a will-maker. A solicitor can help alert you to these issues and refer you to the appropriate specialist if required.
As shown above there are many reasons why you should use a lawyer to help prepare your wills. Lawyers are there to look after you and for a modest investment you can obtain piece of mind knowing your estate will have the best chance possible to go where you intend.