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12 September 2013 Lost in translation - Why you need a lawyer to write a Will

By Angela Harvey, Partner and Euge Power, Solicitor


In Brief

Ever had difficulty communicating when travelling in a foreign country? Just like writing a will, the difficulty is not knowing what you want to say, the difficulty is simply 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.


1.   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 family.
 

2.   Which Will?

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.


3.   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 beneficiaries.


4.   Tax

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.


5.   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.


6.   Complex family?

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 advice.


7.   Thinking "small estate = simple"

Unfortunately this is rarely the case. Young children and superannuation can complicate an otherwise seemingly simple situation.


8.   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 possible.


9.   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.


10. Charity

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 unfulfilled. 


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 Will-town.
 

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email: axh@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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