Whatever Will Be May Not Be: The Importance of a Valid Will
Wills that don’t strictly comply with the laws have become increasingly more common in Court proceedings. Recently, In the Estate of Rodopoulos, two documents prepared at separate times and without legal advice, were held together to constitute a valid Will, even though one of them wasn’t properly signed.
What we are commonly seeing is that Rodopoulos is not alone. More frequently, documents or other means of communication are being upheld by the Court as valid wills. Recent cases range from video recordings to unsent text messages. So if the courts are willing to recognise these types of forms of communication as a legal Will, why bother creating one formally?
Everyone has heard the phrase “the only winners in that case were the lawyers”.
Nothing could be more true than in this situation. Whilst you might think it is cheaper to put your wishes on the back of an envelope, this is likely to end up being far more expensive for the ones you leave behind.
In order for a Will that doesn’t comply with the laws to be upheld, proceedings must be brought before the Courts under section 18 of the Succession Act 1981 (Qld). Court proceedings cost tens of thousands of dollars in legal fees.
The cost of engaging a lawyer to prepare a Will can be as little as 0.2% of the costs of your family having to prove one in Court.
Where a Will has been properly prepared, a grant of probate can be issued in a matter of weeks and the Executors can commence the administration process. On the other hand, Court proceedings to prove a Will that hasn’t been properly made is likely to take at least 18 months to two years. This means your loved ones could suffer without the financial resources they need for an extended period of time.
Don’t take an unnecessary risk
There is no certainty that a Will that hasn’t been properly prepared will be upheld. The Courts will not only look at the document in question, but also the circumstances surrounding the document, including your personal lives.
If the Will is not upheld, the default statutory rules of intestacy apply. These rules may not reflect your intentions, particularly when there are assets, superannuation and business interests involved.
Your loved ones will also have to prove what relationship they had with you to have any entitlement to your estate. For example, recently in New South Wales, despite having a relationship stretching back over 10 years and having a child together, the deceased’s partner was denied de facto status and hence any entitlement to the estate. This was because the couple had previously had a period of separation, during which they lived apart. The Court went as far as considering the relationship status of the couple on Facebook, which was listed as single.
A properly prepared Will gives you the best chance of ensuring your wishes are carried out and spare your loved ones of the difficulties of unnecessary court proceedings.
Take advantage of expertise
Ensuring your will is valid is only part of the equation.
It is important to ensure your wishes are carried out the way you intend, rather than letting a Court decide. This involves consideration of not just your assets and who will receive them, but also when and how they will receive them, and under what circumstances so that the benefit your loved ones receive is truly maximised.
Protect your loved ones today by contacting our Private Clients team today.
This article was written by Ryan Prygiel, Administrative Assistant – Property and Construction.