A Will may seem like an easy document to create. Something that you can do on your own or with the help of a ‘do-it-yourself’ Will kit. It’s not until you are administering the estate that unknown problems come up, if legal advice was not sought at the time of writing the Will.
There are strict laws governing what must be included in a Will, how it must be witnessed and what can and cannot be included. If anything is not done correctly it will most likely incur further costs and delay the distribution to your family. Bad decisions can also lead to additional costs and delays.
Not getting sound legal advice can lead to:
Not understanding what a Will is and the components of a Will
A Will or “testament” is a declaration stating what a person (the will-maker) wants done with their property after death. A Will takes effect only after the death of the will-maker.
The will-maker appoints one or more persons as the executor(s). The executor(s) have the authority to administer the estate in accordance with the instructions in the Will.
Appointing inappropriate executors
A common misconception is that the person appointed as the executor cannot inherit under the Will. This is not the case and can lead to the will-maker appointing an executor who is unsuitable for the role. This could be someone located in another city or overseas which can lead to practical difficulties.
For example, documents that need to be signed by the Executor, have to be couriered to solicitors in another city or country. Arrangements then need to be made with the executors to sign the documents at their office. This happens quite often, and generally incurs more cost and can also be time consuming.
Not using full names of executors and beneficiaries
This can cause confusion when it comes to administering the person’s estate. For instance, if an executor is referred to as “John Smith” instead of “Jonathon Anthony Smith,” and there is several John Smiths in the family, it becomes more difficult to obtain Probate. It will usually be necessary for someone to swear an affidavit to say why he or she believes that particular “John Smith” is the one the will-maker had intended to appoint as executor.
Likewise in the case of a beneficiary not clearly named in the Will, it can be unclear who is the intended beneficiary. This may lead to costly litigation.
Not understanding the risk of potential claims
It is advantageous to get legal advice on the three types of claims that can be made against an estate: Testamentary Promises Act claims, Family Protection Act claims and Relationship Property Act claims. Not getting legal advice can expose the Will to challenge.
Will being incorrectly witnessed
A Will must be witnessed by two independent persons who are in the presence of the will-maker and in the presence of each other when the person signs the Will. If a Will is not witnessed in this manner, it may still be possible to validate the Will under the Wills Act 2007 in order to obtain Probate, but this will be time consuming and incur further costs.
A person who is to benefit under the Will cannot also witness the signing of it. If a beneficiary named in the Will is also a witness to the signing of it, the gift to that beneficiary is invalid.
Unexplained marks on will
Any unusual marks must be explained to the Court before Probate can be granted. These include items that have been crossed out, stamps or smudges, marks that indicate staples may have been removed and even indentations showing that something, may at one time, have been paper-clipped to the Will. In the case of staple holes or paperclip marks it will be necessary for someone to swear an affidavit explaining how the marks got there and stating that nothing else was ever previously attached to the Will.
What happens if there is spelling errors and omission of information?
Incorrect spelling of the will-maker’s or executors’ names, omission of the first name of an executor and omission of the surnames of the beneficiaries – all these things must be explained by affidavit evidence at an extra cost to the estate.
Here at Atkinson & Crehan, we have many combined years of experience in drafting Wills suitable for all types of situations. We can help you navigate through the legal requirements and ensure that the administration of your Estate is not delayed by inadvertent errors in the preparation of your Will.
For assistance get in contact with one of our experienced staff:
Amanda Crehan
Director
Marie Austin
Associate Estates Planning & Administration
Alison Macbeth
Legal Executive
Sarah Clements
Legal Clerk
