I’ve witnessed firsthand how messy things can get when a person has died without leaving a valid will. Even if a will has been made, there are several reasons why it may be deemed invalid or be contested in court.
Simple mistakes can lead to disinheriting a significant loved one, or open the door for your will to be challenged or made void altogether.
It’s difficult to see these messy disputes unfold at a time of significant loss and grief. However, more than half of Australia’s adult population doesn’t have a valid will. It can be daunting to think about leaving this mortal coil, but without a will, your loved ones may not be adequately provided for after your passing. Or perhaps the people you want to receive part of your estate could miss out if your intentions weren’t made clear.
I’ve broken down some of the most common mistakes people make when writing their will. These are the key errors to avoid when making yours. Hopefully, knowing what to watch for in advance will safeguard you from falling into the same traps many Australians make.
1. Not having an up-to-date will
It’s common for a person to make a will decades before their passing. During that time, the will-maker will likely encounter significant life events and relationship changes.
People often underestimate how these big life events can affect the distribution of their estate when they die. It’s important to either make a will – or update an existing one – to reflect in light of major life events such as:
- marriage or divorce
- the birth of another child or grandchild
- an estrangement
- the death of a loved one
- buying property or a significant purchase like a boat or vehicle, or
- some other significant investment.
You may find it surprising to learn that divorce does not automatically or completely revoke a will or deem it invalid. An estranged spouse can legally benefit from their ex-partner’s estate if an existing will lists them as a beneficiary and the document had not been updated before the time of passing.
On the flip side, if you intend to leave your estate to your children but enter a relationship with a new spouse, you should update your will to specify what, if anything, you wish to leave your new partner and what should go to your kids. If your spouse isn’t provided for in your will, they could contest it and the Supreme Court may grant them a significant portion of your estate.
2. Being too specific
While you’ll want to be thorough with your wishes, being too specific can also be problematic if specified gifts are sold, lost, damaged or given away over the years.
Let’s say your will states for your BMW to be left for your eldest child, but it has been sold or written off since the will was made. Disputes may arise if a beneficiary cannot receive the gift they had been promised in the will, particularly if other beneficiaries receive their specified gifts.
You can simply get around this by being more general with the details of certain assets. Instead of writing “my black BMW”, use language such as “the car that is in my name”.
3. Choosing the wrong executor
The job of an executor shouldn’t be taken lightly, as there is often a lot of work to do in administering a deceased person’s estate.
An executor is responsible for taking ownership of the deceased estate and distributing the assets to the beneficiaries as per the will. Executors will also be responsible for arranging and paying for the funeral and other administrative expenses of the deceased.
You may name more than one executor to either act jointly or severally. You should also appoint a back-up executor in case a primary executor cannot act at the time of your death, or if they predecease you.
It is not necessary to hold any professional qualifications to act as executor of a will. People usually appoint a family member or close friend they trust.
If you don’t feel confident entrusting a family member or friend with such an important task, you may instead appoint a solicitor or trustee. Before doing so, you should weigh up the associated fees with the size of the estate.
Choosing the right executor is vital to ensuring your estate is properly distributed. Nominating the wrong person or people for such an important job could cost the estate time and money, and potentially lead to disputes.
Once you have decided on who you’d like to appoint as executor, it’s a good idea to let them know of your decision so they aren’t caught off guard when the time comes. If they don’t feel comfortable with the responsibility, they can let you know now so you have the opportunity to appoint an alternate executor.
Where an executor fails to act promptly, there is also risk the estate administration process can be dragged out. Long delays can cause beneficiaries to become anxious and affect their financial circumstances while they wait for their inheritance.
4. Incorrectly signing the will
A will does not become a legally binding document until it is signed by the will maker in the presence of two witnesses.
The witnesses don’t need to know the contents of the will, or that it is a will at all. However, all three parties must be physically present at the time of signing the will. The witnesses must both be aged 18 or over and watch each party sign the document.
A will can be incorrectly signed if only one witness has signed the document, or if all parties are not present at the time of signing. If the will maker and the witnesses use different pens to sign, the will may be considered invalid.
Another way the will may be incorrectly signed is if the will maker forgets to sign the document themselves.
Essentially, if a will is not signed by all three parties at the same time, it’s simply not valid.
5. Not telling anyone where your will is stored
Making a will and having it signed and witnessed correctly are vital steps to creating a legally binding document, but the effort is pointless if nobody knows the will exists. Make sure your loved ones know you have made a will and where to look for it when the time comes. They don’t need to know the contents of the document, just where it is stored.
Once the will has been finalised and signed, keep it in a secure yet accessible place – like a locked drawer, safe, or safe deposit box at a bank. If you hire a solicitor, they’ll most likely keep an official copy on file in their offices.
6. Not having an original copy
Giving a photocopy of your will to your executor or next of kin can be handy, so they can make immediate arrangements on your passing, such as arranging body donation or planning a funeral, if these wishes are outlined. However, an executor needs the original will document to legally administer your estate.
Without the original, your executor may have trouble getting a grant of probate to manage your affairs. As mentioned in point five above, ensure they know where to find the original document when they need it.
7. Underestimating willingness to contest a will
When someone has died and left their estate, it can be surprising to learn who believes they are entitled to an inheritance, or a larger stake than they were bequeathed.
While a will is a legally binding document, it can be challenged in court. Contesting a will is becoming more common in Australia and other parts of the world.
The law regarding who can contest a will differs between states and territories. The success of a challenge depends on individual circumstances, including the relationship between the deceased and the challenger, and the size of the estate.
If you wish to disinherit a close family member or spouse, or leave them only a smaller portion of the estate, it can be helpful to include a statement or clause in your will justifying your decision. Clarifying this can help minimise the chance of successful claims against your estate, as this demonstrates the omission was intentional.
If you have specific reasons for not including a dependent or spouse in your will, or if you are a person who feels entitled to receive a share in a deceased person’s estate but believes yourself to be unfairly left out of a will, you should seek legal advice.
Wills and estate plans shouldn’t be ‘set and forget’ documents, but reviewed every few years or whenever there is a significant change to your personal or financial circumstances.
Regular reviews ensure the beneficiaries and assets remain correct. This minimises the risk of your will being contested if someone believes they have been unfairly left out or overlooked.
Yajaira Appledorff is a wills and estate lawyer at Bare.
Do you have a valid will sorted? Have you made any of the mistakes mentioned above? Why not share your thoughtrs in the comments section below?
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