Believe me when I say that I have a love, hate relationship with Will kits.

I love them because, no matter how many I see, there are ALWAYS problems with them.  Issues arise not necessarily through the blank document (or template) itself, but by the way people complete them (or sometimes don’t complete them).  And in my world, problems equal profits.  However, at the same time my feelings towards them are best described as one leaning in the direction of hatred.  In fact, it is fair to say that a big part of me really despises them.

You see Will kits, by their very nature, sell an illusion of safety.

I am in the business of justice, and nothing (and I mean nothing), angers me more than the injustice that arises from a product being sold that makes promises that it can’t possibly deliver on.  While most people are aware of the reality that they need a Will, too often there exists a tension between this and the reality that one will need to devote funds to have one drawn up by a professional.  The creators of Will kits understand this, and accordingly, claim to provide the ‘peace of mind’ that comes with a legally binding Will yet for a fraction of the cost of a professional Will.

Nothing could be further from the truth.

In nearly twenty years in the legal profession I have observed time and time again how the most seemingly innocuous of issues arising from estates where a Will Kit was used, often leads to big issues (and expenses) when it comes to the finalisation of an estate.

This was made quite evident through a recent example examined by the Supreme Court in South Australia.

In the matter in question, the Will Kit appointed the wife and son “A” as an executor.   The  pre-printed section of the form continued with the words:

“…but if he/she/they does not/do not outlive me or is/are unwilling to act or incapable of acting then I appoint….”, and second son “B” was named.

In this situation the wife pre-deceased the Will writer, and as such, the question which was referred to the Supreme Court Judge, was whether son “A” was only appointed executor if the wife had survived, or whether, as the case was, the two sons “A” and “B” would act jointly as executors.

It was quite likely that the two sons did not care who acted as executor. If either one, or both acted, or neither; so long as the estate could be administered with the least amount of fuss, delay and of course, expense.

Unfortunately, the Probate Registry do not see things that way at all.

So off they went to the Supreme Court (at considerable expense) to get an order as to who should act as executor.  Turns out the Judge found that both sons would act as executors as other sections of the pre-printed and completed will kit indicated that a joint appointment was intended.

I’ve said it before and I will say it again, I love will kits.

You stuff them up, I get to fix them!

The old adage, ‘you get what you pay for’ applies here.  A cheap Will is most certainly that.  Cheap.  Have your Will professionally prepared by a solicitor skilled in all aspects of Wills and Estates.  An investment in this now will save your beneficiaries money and heartache later, at a time when they would probably prefer to be honouring your memory.

The loss of a loved one is a profound and overwhelming experience. Not only do you need to deal with your personal grief and the roller-coaster of emotions, but you may also be responsible for finalising the financial affairs of the deceased.

The most common question we hear from our clients when they have lost their loved one is, “What do I need to do now?”

Such a question, tinged with sadness, is frequently accompanied by a degree of confusion and a feeling of ‘not knowing where to start’.

The checklist below is only intended to help you to understand what you may need to consider doing when you have lost a love one.

The first stage is to consider and understand the financial affairs of the deceased. Locating the following documents will provide you with an understanding of your loved ones affairs:

• The Last Will;
• Bank books,
• cheque accounts;
• Loan documents;
• Visa/Master card statements;
• Life insurance policies;
• Superannuation policies;
• Pension benefits;
• Refundable bond from a nursing home;
• Certificate of Titles if the deceased owned any property;
• Share documentation;
• Unpaid bills;
• Tax returns;

If the person was running their own business

• Trust documents;
• Company documents;
• Tax returns;

Although locating the above documentation can take some time, they will be critical when the time comes for administration and distribution of the Estate. Depending on the size of the Estate, a Grant of Probate may need to be obtained before any distribution of the deceased’s estate.

Should any of the deceased estate be distributed by you without a grant of Probate, you may be personally liable for any loss and therefore, it is important to know your obligations before you distribute any of the estate.

Welden& Coluccio Lawyers, the Estate Specialists, are happy to alleviate some of the burden during this difficult time and can assist you in determining if a Grant of Probate is required while preparing any applications for Court.

A recent judgement out of the Supreme Court of South Australia sends a timely reminder to all Will Makers, that trying to successfully leave someone out of your Will is still a very difficult and tricky proposition.

 For many years now a myth has been perpetuated in many circles relating to the misconception that leaving someone a ‘token’ amount in your Will is a sound tactic for preventing them from mounting an inheritance claim against your estate.  Perhaps the notion originated from an assumption that the mere fact that you have provided for someone in your Will (no matter how nominally), makes it more difficult for them to successfully challenge it and be awarded a greater share of your estate. This is simply not accurate.

Take for example an estate of approximately $500,000.  If this was gifted to one of only two children then it seems likely the second child may commence an inheritance claim in reaction to receiving nothing under the original Will.  Invariably, it is highly likely that they will succeed in this inheritance claim.  If, however, in the original Will the second child was provided a nominal gift of $100,000, with the first child receiving the remaining $400,000, the second child is still likely to commence a claim, attempting to convince the Supreme Court that they deserve a share beyond that which was already allocated to them in the Will.

So you see, a nominal or ‘token’ gift just isn’t going to cut it.

Let’s get back to the recent case.  The claimants were three of the six children of the deceased widower.   When the deceased and his wife immigrated to Australia from the UK, three children stayed behind as young adults (they were gainfully employed).  The deceased and his wife emigrated with their 3 younger children who, under the Will, inherited the whole of the estate.  A few important points to consider:

–      The deceased emigrated in 1973 and thereafter sustained a cordial relationship with the children left behind.

–    The Will was written in 2007 some 34 years after the deceased emigrated from the UK and, of importance, the size of the estate was modest just a little over $300,000 in total.

–    The Judge still awarded the claimants a sum of $47,500 each.

The next chapter to be written in this case is that of who pays the legal costs.  Under normal circumstances the estate pays everyone’s legal costs.  This further diminishes the value of the estate thus reducing the inheritance received by those chosen by the deceased.

The ruling highlights some of the difficulties apparent when preventing an inheritance claim.  There are some strategies that can reduce the likelihood of such a claim arising.  This may involve using binding death benefit nominations concerning Superannuation interests and transferring ownership of assets in certain circumstances.

It is imperative you seek advice from a solicitor experienced in drafting Wills concerning your wishes to leave someone out of your Will.  A solicitor is best equipped to provide you with appropriate advice related to what strategies may work and in what circumstances the risks of an inheritance claim are high.  For advice on all matters involving Wills and Estate feel free to contact Greg Welden, Jason Coluccio or the team at Welden & Coluccio Lawyers.