Executor or executioner? Is my Will valid?
If you were to ask me how many of my clients have a valid Will, I’d love to be able to answer with the single word ‘ALL’. Unfortunately, that would be grossly incorrect.
Many people believe that they have a valid Will because they have bought a Will Kit, filled it out by following the instructions and put it somewhere safe so that it can be used when necessary.
I will never forget the original Will provided to me after the death of an elderly lady by her son. In that Will, she named her only son as her ‘executioner’. English was not her first language. Although this might be considered as being very efficient, I am happy to report that her son did not fulfil his mother’s apparent wishes. This was the least of his problems. There were issues in relation to her name in the Will versus the name on the real estate that she owned, her Will left various assets that she no longer owned and did not address the new assets she had purchased before she passed away and amongst everything else was the problem with the way the Will had been signed and witnessed. It did not comply with the Wills Act which sets out how a Will must be signed.
There are a number of other factors to be considered when preparing a Will which, without the benefit of a practitioner who has experience in this area of law can quite easily be missed. Consideration needs to be given to testamentary capacity (not to be confused with mental capacity). It is still possible to have ‘testamentary capacity’ being the ability to give instructions about what you want to happen to your assets upon your death even if you do not have full mental capacity. The test lies in the ability to identify your assets and provide clear instructions about what you want to happen to them ie who gets what.
Experienced practitioners are acutely aware of the presence of undue influence. I was recently asked to prepare a will for a lovely elderly widow who wanted to ensure that all of her children shared equally in her estate upon her passing. Unfortunately, her son had an expectation that he would receive more than his sisters. When I attended at the family home, my client and her children were all present and when I explained to the family what their mother had been contemplating, the son responded ‘that’s not what I want’. I had to remind him that it is not his desires and wishes that are being considered, but that of his mother.
There is nothing that can be done to prevent someone making a claim on an estate if they are entitled to do so. A properly drawn Will can, however, reduce the risk of that claim being successful, or a dispute arising in relation to the distribution of the estate. An experienced practitioner will be able to guide you through the intricacies of ‘tightening up’ your Will to deal with someone who might want to make a claim on your estate.
Do you have assets located somewhere other than in Australia? If so, it may be necessary to have two Wills, one in Australia and one in the country where your other assets are held, or alternatively, it may be possible to have one Will to cover everything.
Getting married? Getting divorced? Entering into a de facto relationship? Separating from your de facto partner? New child to the relationship? Loss of a beneficiary or named executor? Superannuation? Life insurance policies? Change of address? Moving into elderly care housing or a nursing home? Long term/terminal illness? These are all events that should trigger you to reconsider your estate planning documents to make sure that they are still going to do what you expect them to do.
TIP: Every two years, locate your Will, read it, make sure that it makes sense and does what you want it to do. If in doubt, ask a solicitor with experience in estate planning and administration to have a look over your Will and to give you advice as to the effects of your Will so that you can decide whether you need to upgrade or just leave it as is. Oh and if you choose to use a Will Kit, please put my name and contact details with it, there is a very high chance your executor will need my assistance.
If you are thinking of preparing a new Will or undertaking a review of an existing Will, contact Suzi Cengarle on 8362 5269 or 0404 493 653. Suzi is an experienced solicitor specialising in estate planning, estate administration and probate and all aspects of family law.
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