Are ‘homemade’ updates to a will valid?

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YourLifeChoices members have queries about ‘homemade’ alterations to a will and a plan to pass on half a home to ‘children’. Estate planning lawyer Rod Cunich explains how they should proceed.

•••

Q. Glenda*
We had our wills compiled via the Red Cross service some years back but when we followed up with the organisation who did it for us at the time, we established that the firm no longer existed. Using the wills compiled at that time, we effected some changes to the documents ourselves and have signed them. Is there a body with whom they need to be registered? What is the process I should follow to ensure they are legal and valid please?

A. In short, you’ll have to see a solicitor to check the documents. Homemade changes to wills are often invalid as they don’t comply with formal legal requirements concerning format and/or execution.

The public trustee services in each state will often review and draft free wills but usually require that you make them your executor, which can result in very expensive administration of your estate. It’s often financially better to pay the cost of a solicitor up front.

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Q. Linda*
If I pass before my husband, can I leave my share of the family home to our two children on the condition that the house can only be sold if my husband wants to sell?

A. You can achieve your desired outcome but you may need to do a few things to achieve the result.

First, find out if you own the property as joint tenants or tenants in common. Only if held as tenants in common can you achieve the outcome. It is an easy and relatively cheap process to change from joint tenants to tenants in common if necessary.

Once the title is tenants in common, there are several ways to then implement your plan.

You’ll need tailored legal advice to determine which is best in your circumstances. It may be as simple as including a conditional gift to your children, but to minimise chances of dispute between your children and husband a more complex arrangement may be required. 

The good news is that you can achieve your wishes. 

* Not their real names.

Rod Cunich is a lawyer with more than 30 years’ experience who specialises in estate planning. He is also the author of Understanding Wills and Estate Planning.

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Disclaimer: All content on YourLifeChoices website is of a general nature and has been prepared without taking into account your objectives, financial situation or needs. It has been prepared with due care but no guarantees are provided for the ongoing accuracy or relevance. Before making a decision based on this information, you should consider its appropriateness in regard to your own circumstances. You should seek professional advice from a financial planner, lawyer or tax agent in relation to any aspects that affect your financial and legal circumstances.

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8 Comments

Total Comments: 8
  1. 0
    0

    Changing /adding to your will. Well there’s an example but there are other important points to consider. e.g 1). A simple addition/change could mean that the new words conflict with other parts of the will making it very difficult to know what the will owner really wants. 2). My guess is that most lay folks (non-lawyers) don’t know what can and cannot be legally written into a will. I recall an example, the will maker wrote ‘my second son inherits everything but to get everything he has to murder my wife first, if my wife dies of natural causes my second son gets nothing, he has to murder her. The problem here is that murder is highly illegal, so the will maker is saying his son must do something highly illegal to get his inheritance. This would not be acceptable at law, therefore the will is illegal/ not valid.

  2. 0
    0

    My late husband left a valid will… it was contested by other family members and took eight years to finalise. Seems to be that it doesn’t matter what your will stipulates if somebody thinks they have a right to inherit whatever they can chase after it and waste heaps in solicitors’ fees!!

  3. 0
    0

    this article was about as usefull as tits on a turkey

  4. 0
    0

    I was executor of my mother-in-law’s will and the lawyers who drew it up had disappeared. Contact the Law Society and you’ll find that law firms frequently merge. I did that and soon found the successor firm who were able to assist and provide the file copy of her will. They finalised probate (for a fee) and I did the rest.

  5. 0
    0

    A very interesting topic that is so relevant to me at present.
    The executor to my and my wife’s wills feels it is a bit to difficult for him now .
    I want to do a simple codasil without going to the expense of a solicitor.
    I thought it would be easy and I would be able to do through the Web.
    Not so ,can’t find a proforma anywhere.

  6. 0
    0

    Stay away from Public Trustee, they will do what they want and depends who pressures them they will bend and tie up what they want to do regardless what your wishes are.
    Do not let them be executor.

    Get together with the recipients and a solicitor and decide together what each will receive, make it legal and then hopefully no arguments. This is not that easy.

    Better still spend it all, make sure the last dollar is gone the day before you die.

    • 0
      0

      I like the comment ‘Better still spend it all, make sure the last dollar is gone the day before you die.” I divorced 40+ years ago in the family court in SA. I tied to explain to the female judge that I suffered from severe PTSD from war service in Vietnam, she commented strongly that she didn’t believe PTSD exists and also told me I was just evil. There was never ever any violence abuse. She awarded the house and car and 80% of the family money to my wife, plus monthly maintenance plus pay all costs of education for the 2 children until they were 25 years old. And she also ordered that i find finance to pay my wife 80% of the anticipated payout of my superannuation on retirement, that happened. Two years ago I got the first contact from my ex wife that I’ve had since the divorce. She demanded that I send her a copy of my will and if I didn’t she would ask her lawyer to get a court order to give her a copy of my will. I saw my own lawyer he laughed and said ‘ignore her, she can’t do that’.

  7. 0
    0

    We only have the one daughter who resides in WA, whereas we are on the mid north coast of NSW. We are in a lifestyle village run by terrific people. At least she will not have anyone dispute our will which is with a solicitor. We were advised against using the Public Trustee.


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