The process of preparing your succession planning is much more than signing and writing a will. In Australia, when you meet with a solicitor, they’ll ask about your assets and liabilities, and personal circumstances.
During these discussions, a succession planning & will solicitor will explain what would ordinarily occur to your assets on your passing. If this isn’t consistent with your wishes, they can offer suggestions about asset restructuring.
You’ll also receive advice about what happens to your superannuation when you die. Your superannuation doesn’t automatically form part of your estate and follow your will.
Many at-home will kits require you to enter information into pre-populated fields and don’t allow you to personalise it to suit your wishes.
One of the common mistakes we see with at-home will kits is that the template often doesn’t allow you to record alternatives if the intended beneficiary or executor doesn’t survive you.
If your will is challenged under an Inheritance Family Provision Claim, one of the factors a court will take into consideration is the wishes of the testator (willmaker) and the relationship they had with the claimant.
When you write your own will with a solicitor, they’ll ask about your relationship with family members who may bring a claim under the Inheritance (Family Provision) Act 1972 (SA).
If needed, the solicitor will be able to give independent evidence in court attesting to your wishes and your instructions as to your relationship with the claimant.
A will may be challenged on the basis that the testator didn’t have the mental capacity required to make a will. If the court finds that the testator didn’t have capacity, then the document can’t be admitted to probate.
If this occurs and the testator has an older valid will, then this will be the testator’s last will and testament which should be admitted to probate. If the testator doesn’t have an earlier will, they’ll be found to have died intestate.
Mental capacity to make a will is not a medical test but a legal one. If you make a will with a lawyer and it’s challenged in court, they’ll be able to provide independent evidence of your capacity.
In Australia, DIY will kits are often not completed or signed properly, which raises real questions as to their validity. This results in significant delays and costs in trying to rectify the errors with the Probate Office, and in some cases, home will kits result in very expensive litigation.
Signing the will without two (or any) witnesses
Signing a will in front of two witnesses at different times and not in the presence of the other witness;
Not dating the will;
Writing out the will in different inks;
Signing the will in one ink and your witnesses signing in a different ink;
Adding content to the will after its initial execution;
Creating partial intestacies (for example: gifting a number of assets but not providing a direction as to the residue of your estate);
Not appointing an executor;
Tampering with the will (for example: removing a staple to copy the will then re-stapling the will or using a paper clip to attach another document to the will).
Most people don’t properly understand what assets are capable of being gifted under the terms of a will – and nor should they be expected to. For example, people using DIY will kits in Australia often improperly gift jointly owned property, property that is not theirs, or property that belongs to a family trust or company.
When you write your own will, it’s also important to understand how your superannuation fits in. This is particularly important when superannuation (and any accompanying death benefit) is one of the biggest assets accumulated by people during their lifetime.
When updating your will, it’s important to consider a power of attorney and an advance care directive. This enables people of your choosing to make legal and financial decisions (power of attorney) or medical and lifestyle decisions (advance care directive) for you during your life if you are mentally incapacitated. A do-it-yourself will won’t give you these options.
The Supreme Court has the power to admit wills that don’t meet all of the formal requirements set out in the Wills Act, such as at-home will kits, if enough evidence is provided. However, this is always a very costly exercise for your executor and results in significant delays to your beneficiaries receiving their benefit under your will.
In most cases, the cost of making a will with a lawyer is far lower than what your loved ones might pay in legal fees if they need to challenge your incorrect will because you used an Australian DIY will kit.
The Johnston Withers team are proud to have helped thousands of people make sure their loved ones are provided for after their death. When experience matters, we’re here to help you, too.
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