Ever had difficulty communicating when travelling in a foreign
country? Just like writing a will, the difficulty is not in knowing
what you want to say, the difficulty is simply in how to say it.
The last thing you want is for your last words to be lost in
translation. Angela Harvey, partner, and Euge Power, solicitor,
show off some snapshots of what it is like travelling DIY without a
lawyer in Will-town.
Ambiguity leads to argument
Ambiguity and disagreement about the meaning of testamentary
intentions often leads to dispute. To be the cause of a dispute
between your friends and family after you are gone would be a
tragedy. We see quite often that ambiguous language when the
deceased is not around to clarify what they meant can often mean
argument, disappointment and ill feeling between friends and
If you have more than one will, there may be a dispute over
which one is your current will, or whether they are supposed to be
read together. Lawyers know how to draft wills to make sure that
such issues won't arise.
Not just anyone can witness your Will
There are very strict rules around who can witness your will,
and the method of signing and witnessing. Do it wrong and it can
have huge consequences for your executor and your
Who do you want to be a beneficiary of your will? Do you want it
to be your friends and family, or the Tax Man? Just like in life,
tax can often be legally minimised with effective estate planning,
including through the use of testamentary trusts. Wills including
testamentary trusts are more complex and require special wording
– lawyers know how to draft these effectively.
Not having a Plan B
What happens if the unexpected happens? What if all your
beneficiaries do not outlast you or pass away at the same time?
These things do happen, and a properly drafted will including a
series of alternate beneficiaries (such as remoter family members,
friends and charities) will ensure your voice will still be heard
if the worst does come to pass.
Your legal affairs are probably more complicated than you think.
For example, if you are part of a blended family, your estate plan
will be more affected by the law (for example the Succession Act
2006 NSW) than someone who is single. If you are thinking of
excluding people from your will you might find it is not as simple
as it seems. Challenges to your will, family provision claims and
the commencement of long family disputes are some of the outcomes
which can arise when you do not have access to the right
Thinking "small estate =
Unfortunately this is rarely the case. Young children and
superannuation can complicate an otherwise seemingly simple
The property you don't own yet
With any luck, you will continue to accumulate wealth. Although
updating your will should happen after any large shifts in your
circumstances, you don't want to be updating it with every car
upgrade. Lawyers know how 'future proof' your will to
ensure that it stays valid and relevant for as long as
Your health and influences
There are plenty of documented cases where people use undue
influence to make someone sign a will, or claim in court that
someone was unduly influenced while they were unwell, to suit their
own ends. Instructing a lawyer to draft your will (or the will of a
family member) means that the lawyer will be able to record the
circumstances surrounding the execution of the will, including the
capacity of the will maker.
Gifts to charity are a superb use of your benevolent instincts
as well as a great help to wrap things up as an alternative
beneficiary in your will. However, gifts to charities can fail if a
few important rules are not followed, leaving your best intentions
Ten easy to explain issues, a multitude of circumstances which
can find your friends, family and executor in suitcase loads of
trouble. When thinking of putting together a will, speak to your
lawyer; they will have all the local knowledge and experience you
need. Don't be another tourist who is failed by DIY mirages in
The session considered how, if at all, the definition of property in family law matters is changing in the 21st century.
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