Studies show that at least 45% of Australians don't have a valid Will. It is extremely important to make a Will so that you can make sure that, upon your death, your assets pass to the people you want to have them. I often act in connection with the administration of estates where the person died without having made a Will. One particular matter involved a person who had never married and had no children. Under the rules of intestacy, his entire estate passed to relatives overseas, relatives with whom the deceased had severed ties with and who he wouldn't have inheriting his substantial estate.
As a lawyer practising solely in the Wills and Estates area, my experience is that even when someone has made a Will, it isn't always adequate for one reason or another. There is no substitute for a professionally drafted Will.
Although some are dissuaded by the cost of having a solicitor draft their Will, a poorly drafted Will can cause untold problems for the Executor and beneficiaries, and lead to a significant increase in the costs of administering the estate - often the case when people use "Do-It-Yourself Will Kits" or prepare the Will themselves at home. In some cases, if the Will hasn't been drafted by a professional, it may contain errors that mean the Will doesn't comply with the formal requirements set out in the Succession Act or it may fail to dispose of all of the Testator's assets. Some examples of problem Wills that I have seen during my time in practice include:
- a Will that had been witnessed by two independent witnesses but had not actually been signed by the Testator;
- a Will where the Testator changed his mind about one of the gifts left in his Will and used white out in order to delete the gift from his Will;
- a Will where the wording used by Testator to name his beneficiaries was so ambiguous that it was impossible to work out whom he intended to inherit his estate;
- a Will that failed to name an Executor;
- an undated Will; and,
- a Will that failed to dispose of all of the Testator's assets.
Once you have made a Will, it is important to review it regularly to ensure that it adequately reflects your current circumstances. Some of the reasons why your Will may need to be updated include:
If there are any significant changes to your assets (especially if it is an asset specifically referred to in your Will);
- if an Executor is unable to act due to death or ill health; and,
- if your personal circumstances change (for example, you would need a new Will if you got married because marriage revokes your existing Will).
- If you would like to discuss drawing up a Will, please contact our Wills and Estates team in Parramatta or Norwest:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.