Lost in trans­la­tion — Why you need a lawyer to write a Will

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.