Conflict avoidable with a Will
By Donna Benge
Partner, Wills & Estates Team
The loss of a loved one is a distressing time for the family that is left behind. Not only must they deal with the grief of their loss but they must also consider the legal issues that need to be addressed, sometimes very soon after death. The executor’s role is to represent the deceased and act in the best interests of the beneficiaries. They are responsible for protecting the assets immediately after death but there can be great uncertainty and conflict between family members when there is no Will giving someone the authority to do what is required.
The Importance of Having a Will
I have always been amazed by the number of people who do not take the time during their lifetime to prepare a legally valid Will. As a society we are increasingly focused towards wealth creation and protecting our financial security to maintain the lifestyle we have become accustomed to, but many people neglect to consider protecting that wealth when they die by having a Will.
A Will may be one of the most important documents you will ever sign during your lifetime. Not only does it appoint one or more persons (the executors) to manage your estate but it also gives you your one opportunity to express how you wish your assets to be distributed following your death. Without a valid Will, the laws of intestacy dictate how your estate will be divided which may not be in accordance with your wishes or intentions. Intestacy is governed by the Administration and Probate Act 1919 (SA) and defines how a person’s estate will be distributed when they die without a Will. Over the years that I have been practicing in this area of law I have discovered that there is a general misconception that if a person is married then all of their assets would pass to their spouse on their death, but this may not always be the case. Complications can arise for individuals in second marriages or domestic partner relationships (de facto relationships), particularly when the individual has children from a previous relationship.
The law relating to Wills is complex and can be confusing in some circumstances. The difficulty in preparing Wills is that there is little room for error. As a Willmaker, following your death you have no way of explaining yourself or expressing what your real intentions were if the Will you have prepared is ambiguous.
Home-made Will Kits at Fault
Notwithstanding the importance of having a Will, many people attempt to prepare their own Wills. At first glance, the home-made Will kits appear to make the entire process easy and straightforward as there is no possibility of mistakes – right? Wrong! These kits are fraught with danger and anyone who has a home-made Will or is intending to prepare one should reconsider having their Will prepared professionally. While writing your own Will may result in a small cost saving at the time, in many circumstances it can cause a number of problems that must be dealt with down the track after you have died.
Over the years I have acted for many clients who have had the responsibility of dealing with these problems. In all of these circumstances, it has come at a huge expense to the estate therefore diminishing what assets are available to give to the family. It also causes significant time delays which in most cases would have been avoided if the Will had been prepared professionally.
Often I am surprised by what sometimes appears to be a very casual approach towards the preparation of a home-made Will particularly when a person’s Will is so important. I have seen home-made Wills that give away assets that the Willmaker does not actually own; that do not give away the entire estate therefore leaving a partial intestacy (which is distributed in accordance with the laws of intestacy rather than what might have been expressed or intended by the Will); and that make conditional gifts to beneficiaries. In other circumstances home-made Wills have not met the Willmaker’s responsibiities to provide for a spouse or children resulting in the Will being challenged at the cost of the estate.
In a significant number of cases, home-made Wills do no comply with the formal requirements of signing the document. Affidavit evidence can be required from the people who witnessed the Will and sometimes from family members outlining the details surrounding the preparation of the Will including how and when the Will was signed. Further delays and costs are incurred in locating the witnesses and obtaining that information from them. Difficulties arise when witnesses cannot be located or have even died themselves.
If you have prepared your own Will you should consider having your Will and your circumstances reviewed by one of our experienced Wills & Estate Planning Lawyers. This is the only way that you can ensure that your family will not be faced with dealing with the problems I see too often and with the proper advice could be avoided.