As long as you’re 18 or over, it’s never too early to draw up a will. Photo: Rawpixel photography.
Before she passed away, Alice* told her family they’d know her will when they saw it. She was right; when her sister went looking, she found a brightly coloured notebook titled ‘Read this when I cark it’ written in black, blue and red marker.
Inside was a handwritten will that detailed Alice’s wishes, along with a list of her assets and funeral instructions.
Despite being signed, dated, and written by Alice’s hand, BDN Lawyers managing partner Richard Baker knew the will would be considered ‘informal’ the moment it came across his desk.
What followed was a 12-month wait for the document to be legitimised in court.
“Alice’s will was handwritten with clear intent, ” Richard says.
“Even though it made her wishes clear, the will wasn’t witnessed or checked by a lawyer, so the court considered it informal. Because Alice’s assets were complex, having the document validated was absolutely crucial in managing her estate.”
A formal will must be in writing, signed by the will-maker and witnessed by two non-beneficiary adult witnesses. Above all, it has to clearly be intended as the final testament of the person who has died.
Simply put, informal wills make their owners’ intentions clear, but don’t satisfy the legal requirements set out in the legislation.
Common failures include failing to sign the will, failure to have it properly witnessed and making hand-written amendments after the will has been signed and witnessed.
“Every will has the potential to be legally binding,” Richard says.
“If a will fails to satisfy the formal requirements of the legislation however, proving the will becomes a far more complex process, costing your loved ones a great deal of money, time and stress on top of their grief.
“In the case of Alice, to prove the will, it was necessary to engage a barrister, undertake extensive and exhaustive searches to try to identify any alternate wills, and even obtain expert evidence from a hand-writing expert. This level of inquiry simply wouldn’t have been necessary if Alice’s will had been properly drafted and witnessed.”
Richard Baker says your will is more likely to be challenged if estate plans are drawn out, especially if there are already disputes between loved ones. Photo: BDN Lawyers.
So, what about online will kits?
While they do offer basic instructions on what to include in your will, online bots can have limited ability to take your specific circumstances into account, explain what assets will be included in your estate or how to give effect to your wishes.
Richard advises against any service that claims to be one size fits all.
“To be honest, generic online will kits have produced some of the worst documents we’ve dealt with,” he says.
“They can work for very simple estates, but frequently result in misunderstandings as to how lesser-known assets such as super, life insurance, shares, online investments, and joint property can or should be dealt with.
“If you do choose an online will kit, we would always recommend sitting down with a lawyer in person to go through the document to ensure it is actually suitable for your needs.”
In the end, Alice’s will was proven and her wishes came to pass. But while we’re all a little guilty of leaving some things to the last minute, especially if they’re confronting, Richard warns against procrastinating where your will is concerned.
The last thing anyone wants to do after losing a loved one is worry about proving their wishes.
“If you’re 18 or over, you should have at least a basic will in place, even if your assets aren’t significant,” he says.
“Consider reviewing your will every year or two, especially if your financial situation changes and after life events such as marriage or having kids.
“This doesn’t just protect your assets. It gives you and your family peace of mind that if anything should happen to you, your wishes are recorded clearly, securely, and in a legally binding way.”
For more information, visit BDN Lawyers: Wills & Estates.
*name withheld
