At Welden & Coluccio Lawyers we absolutely love what we do.  In fact, the passion that we have for Estate Planning, Administration and Litigation is the real secret to our success.

Perhaps somewhat of an industry secret, Doyle’s Guide, is an annual publication that celebrates the best lawyers, barristers and law firms in the business.  Within each area of law, and for each State, rankings are allocated, identifying pre-eminent, leading and recommended practitioners.  Similarly, the guide recognises law firms specialising in specific areas of law and ranks them in tiers.  What makes the guide really special is the process by which these rankings are calculated.  Admission in the guide is determined by our peers, who identify firms and individuals through surveys, telephone and face to face interviews.

This year we have extended our success across a range of categories, improving equalling (and in some cases) improving our ranking from 2015 and 2016:

Leading Wills & Estates Litigation Lawyers – South Australia (2017): Jason Coluccio (Recommended), Greg Welden (Recommended)

Leading Wills & Estate Litigation Law Firms – South Australia (2017): Welden & Coluccio Lawyers (Second Tier)

Of special note is our achievement in what are new categories for 2017:

Leading Wills, Estates & Succession Planning Law Firms – South Australia (2017): Welden & Coluccio Lawyers (First Tier)

Leading Wills, Estates & Succession Planning Lawyers – South Australia (2017): Jason Coluccio (Leading), Greg Welden (Leading)

The message is clear; Welden & Coluccio Lawyers really are the ‘estate specialists’.

For more information about the guide and to see the final list please click here.

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.

Jason Coluccio writes frankly about future directions in the legal profession, why law firms are facing huge challenges today and what he did about it.

When I joined the legal profession in 2011 it was not as a fledgling, wide-eyed twenty-something graduate (with minimal life experience), but rather, as a reasonably savvy businessman with a proven track record in sales. It followed then, that the lens through which I viewed the legal profession was perhaps a little unique. It was this lens that had me immediately question what I viewed to be the rather antiquated practices in the legal profession as a whole.

You see my first experience in law was in the corporate world. It was a world which I felt was struggling to maintain a hold on the traditional ideals of ‘what law was’ and ‘what lawyers do’ amidst a tidal wave of change driven by economic and technological factors. It seemed to me that lawyers, in general, were grappling to hold onto a sense of their own autonomy and work practices that were more akin to a pre-industrial age type cottage industry. Where was teamwork? Where was the drive to improve the efficacy of the work that lawyers do? Furthermore, I was deeply concerned by the apparent inability for lawyers, as a whole, to engage with clients (and potential clients) using emerging technologies (and in this I’m speaking of those beyond that of a website).

While there was a handful of visionary lawyers (and firms around), the vast majority were stuck in the past, refusing to move forward and undoubtedly headed for a slow grinding halt. It was at this point that I came across the work of Richard Susskind, author of Tomorrow’s Lawyers: An Introduction to Your Future (2013). Susskind’s book echoed my observations exactly, while taking this a step further and suggesting real solutions for lawyers and law firms wanting to exist (and thrive) well into the millennium.

By the time Greg Welden and I were ready to start our own firm in March 2014, we realised that any business we created must effectively ‘redefine’ what law is, along with ‘reimagining’ the processes for how lawyers work. The old model, which valued autonomy, was unproductive and ineffective. Instead, our strength as a firm would be discovered through collaborative processes and teamwork. We knew that we must become social media experts, constantly alert to new opportunities and methods to engage with our clients. Finally, and of great importance, we understood acutely that Law does not exist behind a partner’s desk in a room lined with leather bound books. Rather, that law, and everything that lawyers do is relational. Our work is one focused on people.

While it was easy to be distracted by office locations, furniture and fancy letterheads, we realised that at the heart of our business would be the articulation of our vision and mission. This statement would be the driving force behind everything that followed. Accordingly, we spent many evenings in our “think-tank” discussing (and sometimes engaged in heated debate) the values we wanted to underpin our business. These sessions culminated in the following document which we live and breathe every day:

What We Do

Welden & Coluccio Lawyers is a small, boutique law firm that brings a unique and fresh approach to the practice of law in all facets of estate planning, administration and litigation.
We work collaboratively and transparently with clients to provide innovative solutions, a broad range of choices, thereby supplying a quality product that is enduring.
We offer real experience and specialist knowledge that is service driven, communicated simply and is economically responsible.
We are committed to our goal that sees us strive to become the most respected, innovative and distinguished estate planning firm in South Australia

Why We Do It

At Welden & Coluccio Lawyers…
+ We believe our primary role is to make Law look easy.
+ We believe People are at the core of our business and authentic relationships are central to everything we do.
+ We celebrate the challenge that emerges from what is difficult and complex.
+ We are passionate about learning and are committed to processes that drive us to evolve dynamically to meet the changing needs of our clients.
+ We believe in saying no to work outside our core practice area of law so that we can shine brightest in those areas we are deeply passionate about.

Did it work? As the saying goes, “the proof is in the pudding”. Our business, while being a tremendous amount of hard work, has grown in strength above and beyond our initial expectations at a rate that is sometimes unfathomable. With two offices, four solicitors, and one supporting staff member, our greatest concern is not will we expand but how best to manage this growth in such a way as to honour our original ideals. Furthermore, the evidence of our success is not something measured only in profits. For us, it is about the real difference we make in the lives of our clients. Law is relational. It is about people and when we remember that it becomes all the more satisfying.

As part of the 1967 divorce, Lennon set up a trust for Julian to receive £100,000 when he turned 21.  However, he had to share that with any other sibling that came along.  It would come as no surprise then, to note that in his Will Lennon made no mention of, or provision for, his first born child Julian.

The Will

There is nothing truly unique about Lennon’s Will.

It would also come as no surprise that Yoko Ono was made executor of Lennon’s estate.  In fact, half of his estate was directly for her benefit, with the remainder funding a trust of which Yoko Ono and an accountant controlled.  The terms of the trust are believed to benefit Yoko and their son Sean.

The trust described above was created during his lifetime.  Lennon was in control of the terms of that trust which therefore ensured he controlled who managed that fund after his death.

As executor to Lennon’s estate Yoko Ono therefore gained complete control over Lennon’s original song rights and image. The value of the estate is estimated to be about £220 Million which generates an annual income for the benefit of Yoko Ono and their son Sean of approximately $12 million (US).

Of course the continued income generated by the estate could have been higher were it not for the entire Beatles catalogue of music being sold in 1985 for $47.5 million (US) to none other than Michael Jackson.

What did Julian do?

As you could imagine (pun intended) Julian was not pleased, suggesting that Yoko Ono had improperly influenced Lennon.  Julian sued for a larger share of the significant estate and eventually settled in 1996, 16 years after Lennon was killed.

Julian reportedly received approximately £20 million and is said to have been content with such an amount given the possibility of being faced with a very lengthy and very expensive legal battle against Yoko Ono, who clearly had an almost limitless fund behind her.

Lessons to be learned

Irrespective of what size estate you leave behind it is very difficult to remove or negate a child from your Will.  There are circumstances in which it might be appropriate, what we call disentitling behaviour¸ but in most circumstances it is difficult and should be dealt with head on.

What are the reasons behind leaving them out?  Is it not better to record your wishes about why you believe they do not deserve any benefit from your estate?

After divorce or separation, particularly if a child is born to that previous relationship, careful estate planning is necessary to avoid (or lessen) the risk of any potential claim.  It is often impossible to appease everyone’s moral entitlement.  Sometimes being sensible is the best you can do.

Could Lennon have done more?  Of course.  He may have created an additional trust, funded by a much smaller portion of his estate that would continue to generate income and would benefit only Julian.  If that had been put in place it may have made it more difficult for Julian to mount any type of challenge.

Clause 8 of Lennon’s Will is interesting, in that a lot of people try and include terms such as these in their Wills (or instruct me to include them). Alas, any clause that suggests a beneficiary will be removed from a Will if they attempt to stake a higher claim, is viewed as against Public Policy and would rightfully, be ignored by the Supreme Court thus proving no benefit at all to the will maker.

Conclusion

Every adult must have a valid and up to date will.

If you have been divorced or have a child or children to previous partners then a well-considered and properly thought out estate plan prepared by an experienced solicitor is a must.

There is just too much at stake.

At Welden & Coluccio Lawyers we can assist, advise and guide you through this very important aspect of estate planning, it is more than just a Will!

**You can have a look at John Lennon’s actual Will here.

A recent Revenue Ruling by the Commissioner of State Taxation has now made clear that the use and implementation of including the phrase ‘and or nominee’ in a contract, most likely for the purchase of land, is no longer required.

A word of warning. If you think it is now safe to begin executing contracts for the purchase of land on behalf of family and friends and so on, think again. Signing a contract for the purchase of land, or any contract for that matter, is a serious step and should not be undertaken without considerable thought and legal advice. If the intended purchaser, perhaps your friend, pulls out of the deal or fails to settle, the vendor will sue YOU. After all, you signed the contract and until settlement occurs you are required at law to fulfill all of the purchaser obligations, including to settle and purchase the property.

First things first, what is ‘and or nominee’ and why was it frequently used?  By using the phrase ‘and or nominee’ after the name of a purchaser, allowed one party to sign the physical contract for the purchase of land, whilst reserving the ability to register the actual owner of the property recorded on the title deed in another.

The best example is the purchase of property at an auction.  Once the bidding has ended the highest bidder must immediately execute the contract for the purchase of the land. On many occasions, the intended purchaser may not be able to physically attend the auction but has given authority and instructions to a third party to bid and execute the contract on their behalf.  In such an instance, the actual purchaser, Mr X, authorised and instructed the winning bidder, Mrs Z, to execute the contract. The name of the purchaser would be recorded as Mrs Z and or nominee.  Shortly after the contract was signed the letter of agency is produced and the Memorandum of Transfer is drafted with Mr X appearing as the actual purchaser.  What is often overlooked is that the letter of agency must pre-date the execution of the contract.

Another avenue for those that have executed a contract for the purchase of land to own it in another name is to assign the contract by way of a deed, another short written contract. In our previous example, if the letter of agency did not exist, or perhaps Mrs Z and Mr X wish to hold the land in a company which has not yet been created, Mrs Z can assign her interest in the contract by deed to the new company.
When it comes to Stamp Duty, a State assessed tax enshrined in the Stamp Duties Act 1923, which is charged on certain documents and transactions (usually where a transfer of ownership has occurred), it has been the previous practice of the Commissioner for State Taxation to require evidence of duty being payable not only on the Memorandum of Transfer but also the Deed of Assignment.  Stamp Duty on the Deed of Assignment is paid on the amount of the deposit paid.

Back to the new ruling. The Commissioner of State Taxation has confirmed he will adopt and recognise the existing common law that a purchaser recorded in a contract may direct (without the need for a deed of letter of agency) the vendor who to transfer the property to.  This will now avoid the need for letters of agency, Deeds of Assignment and the use or overuse of the phrase and or nominee.

Signing any sort of legal document without legal advice is risky. You should always seek professional advice on all legal documents before signing. Welden & Coluccio Lawyers are here to assist and can provide expert legal advice on a range of written contracts including the purchase, or sale, of real estate property.

Celebrities are not immune from this either, take for example the ‘out of date’ Will of Heath Ledger.

Everyone knows they should have a Will.  Whether everyone actually has one is a different thing altogether.  Whether it be apathy, laziness or fear of death, an alarmingly large number of adults still do not have a Will.

In certain circumstances it can be even more dangerous to have a Will that is out of date.  I’ve seen some so old, that the guardians chosen for minor children is irrelevant; because those very children are now aged in their 40’s!

A more serious consequence arises if a Will is not updated to take note of, or cater for, a change in personal circumstances.

Heath Andrew Ledger died tragically on 22 January 2008 aged 28 following accidental intoxication from prescription drugs.  A few months before his death, Ledger had finished filming his (well-deserved) Academy Award winning performance as the Joker in The Dark Knight.  After performing roles in Australian television and film during the 1990s, Ledger left for the United States in 1998 to further develop his film career starring in 10 Things I Hate About You (1999), The Patriot (2000), A Knight’s Tale (2001), Ned Kelly (2003) and Brokeback Mountain (2005).

In 2004 Ledger met and began dating actress Michelle Williams, and their daughter, Matilda Rose was born on 28^th October 2005.  Ledger and Williams ended their relationship in 2007 but remained on good terms until his death.

Despite his celebrity status, wealth of press agents, professional assistants, financial advisors and hangers-on; no one deemed it worthwhile (or if they did he didn’t listen/act) to update his Will.  The last one prepared in 2003 did not include his daughter.

A Will remains valid unless it is found to be a forgery or completed in circumstances that give rise to a serious suspicion that the Will maker was not of sound mind when signing it.  That is to say, that despite an obvious omission, the Will, on the face of it, is valid and the directions that appear therein must be carried out.

Celebrity Gossip website TMZ obtained a copy of Ledger’s Will and can be viewed here.

The Will divides what was likely to be a very large estate between his sisters and parents.

By all accounts, it appears that the lawyers were not called in, as so commonly occurs in Hollywood (perhaps the Aussie influence).  The Ledger family have openly admitted they will be providing for both Matilda Rose and Michelle Williams in whatever way they can.

It is worth noting that if the Ledger family were not so generous, then an inheritance claim  would have been the likely outcome.  In this situation, Michelle Williams, as the guardian of young Matilda Rose, would be left to take action in Court, suggesting that Ledger’s daughter was left without adequate provision.

Here is a fun fact.  If Ledger died without a Will at all, his daughter Matilda Rose would have been the sole beneficiary of his estate (assuming an estate distributed in South Australia).  An issue would arise as to who, until his daughter turned 18, would control the fund.  However, an out of date Will can have even more serious consequences than having no Will at all.

It is imperative that you update and regularly review your Will and other associated documents after any change of personal circumstances including marriage, divorce, new partners, children, death in the family or the purchase/sale of significant assets.

Good advice from experts in the field, who remain up to date on legislative changes and drafting trends, remains critical to establishing an effective and thorough estate plan.

Come and visit Jason Coluccio or myself, Greg Welden, at our office in Prospect to discuss your estate plan and how we might assist you or answer any of your questions.

At Welden & Coluccio Lawyers we pride ourselves in having created, what we affectionately refer to as “a home-baked cookie kind of business”.

I appreciate that this may seem like a long stretch. However, suspend your disbelief long enough to put aside your image of a lawyer (wig and gown clad if you wish), stooped over a stove, as the smell of freshly baked goods wafts gently in the direction of the boardroom. While this is clearly fictional (albeit a delectable) image, it is one in which there does exist a small grain of truth.

You see I’m not really talking about cookies, I’m talking about authenticity. Law is always about people, and as such, it is intrinsically relational. The problem with lawyers is that too often, bogged down with files and musty old books, they seem to forget this fundamental truth. It is a principle that is frequently lost in the over-corporatisation of the business of law.

When Greg Welden and I started Welden & Coluccio Lawyers we made a conscious decision to abandon this type of business model. We wanted nothing to do with the practice and business of law which had forgotten or ignores, people. I’m speaking of the type of law where you are greeted at reception by a well-groomed, albeit clinical, receptionist who offers you a seat and a spritzer before joining your solicitor in a glossed up, over-sized, board room.
By contrast, we wanted to have the type of office where those who used our services valued us not just professionally, but personally. We wanted them to really know that they are not just clients but are actually people for whom we understand the extent to which the law has a very real and lasting impact in their lives. I am speaking of real people like Cathy, who came to us recently to have her Wills updated. She wrote:

I was aware of the importance of having an up to date Will and Power of Attorney. I have witnessed many stressful experiences for families who had not had these in place, and the unexpected has occurred.
I approached Jason Coluccio from Welden & Coluccio Lawyers because my family situation had changed suddenly and unexpectedly. I sought advice to ensure maximum protection.

Despite having an extensive and long term financial background myself, I found there were still many important legalities that I was unaware of, and Jason helped me to address these. Even though I did already have a fairly recent Will, certain potential complications had never been brought to my attention before. My circumstances had altered over the years, and it was important that it was up to date. Jason reviewed it, and found I had a few anomalies, which he brought to my attention.

I found the experience to be most beneficial and informative & I now have full confidence that my affairs are completely in order. Since then, Jason has assisted five of my immediate family members to do the same.

I would highly recommend Welden & Coluccio Lawyers to people who need expert advice, and have recommended them already to extended family and friends.

In many ways we can’t compete with the large multi-national corporate law firms. However, being small in itself is not a disadvantage. In fact, we relish it. Being small means that when you call us, chances are you will speak with an experienced lawyer immediately. In fact, he or she will probably answer the telephone.

“What about the cookies?” I hear you ask. Well, at Welden & Coluccio Lawyers we have those too; jam drops sometimes, but more often than not the home-baked kind made with real butter and a cup of tea on the side.
If your clients are real people too, then why call and make an appointment with Welden & Coluccio Lawyers, for a cookie and a cuppa and chat about their legal needs.

Welden & Coluccio Lawyers, the Estate Specialists, where real people really matter.

What is a digital asset?

A digital asset is anything you may own, or have rights to, that exist either online or on hard storage devices. Some examples of your online assets include email, social networking, iTunes, cloud storage and financial accounts. Hard storage devices include assets such as computers, laptops, USB, smart phones and any other external storage drives which are locked by way of encryption.

Why is important to consider our digital assets in estate planning?

 Whilst we are creating personal digital assets at an unprecedented rate, the laws governing them have not developed simultaneously. It remains unclear where the notion of digital assets fits among other traditional concepts of property. Therefore in order to protect these assets, it is important to make separate provision for dealing with them in your estate plan.

It is important to deal with these assets for various reasons.  This includes the prevention of identity theft, to have your history and memories recorded and your wishes expressed, to continue the management of any online business, to assist your executors in the estate administration process and also for preventing any litigation which may be required in being able to gain access to such assets.

Furthermore, whilst the value of a digital asset may vary, the particular type of value of the asset may be significant for a loved one or beneficiary. For example, the asset may have sentimental value such as digital photos, or it may have significant monetary value such as a professional blog or writing.

How do I include digital assets in my Estate Plan?

 The first step is to create a digital inventory of all your assets. This inventory will need to include the names of all your assets and where they are stored, as well as all the usernames, passwords and secret questions which will allow a nominated person to be able easily access them upon your incapacitation or death.

It is then important to think about what you’d like to happen to these assets upon your incapacitation or death. For example, would you like to have your Facebook account closed down or memorialised? Is there someone in particular you would like to have access to your iTunes account?

Once you have made the inventory and considered what you would like done with your assets, it is then important to make your wishes legally binding by formalising them in a Will and Enduring Power of Attorney.

Incapacity

The most important part of planning for incapacity is to execute an Enduring Power of Attorney.  This document will allow you to appoint someone that you trust to deal with your digital assets effectively and properly in the event you are incapacitated and can no longer control the accounts yourself.

Death

 Your Will is the document which addresses how your assets will be dealt with upon your death. Therefore it is important that your Will make provision for and include a clause that will give power to your executor to handle and manage your digital assets in accordance with your wishes and the terms of your Will.

Your executor, being the person you have nominated to administer your estate, should also have access to your inventory of your digital assets. This allows them to know what assets exist and where to locate them. The inventory should remain separate from the Will and should be updated as required.

The concept of ‘digital assets’ is no longer an idea of the future but rather it is very real and present right here and now. Therefore, it is prudent to seek advice from a solicitor in relation to your digital assets and your estate planning needs. A solicitor is best equipped to provide you with appropriate advice on how to best to structure your affairs in order to ensure your digital assets are dealt with effectively in your estate plan. For advice on Wills and Estate matters contact Jason Coluccio or the team at Welden & Coluccio Lawyers.

I say and write that repeatedly when speaking with new clients, current clients, friends or the public when presenting seminars or information sessions.  So why do we not think that celebrities don’t have a Will?  Of course they do.

Celebrity Wills range from the complex, think Michael Jackson, to non-existent, Amy Winehouse or, (would you believe it?) Abraham Lincoln (who coincidentally was a lawyer himself).

In this series I take a look at the Wills of the famous, starting with the sad and recent departure of Robin Williams.

Robin McLaurin Williams died on 11^th August 2014 aged 63 after a long history with depression. Williams started as a stand-up comedian in San Francisco and Los Angeles in the mid-1970s and rose to fame as Mork in the sitcom Mork & Mindy.  Other notable films include Popeye (1980), war comedy Good Morning, Vietnam (1987), drama Dead Poets Society (1989), the animated musical fantasy Aladdin (1992) and Good Will Hunting (1997).

In 1998, Williams won the Academy Award for Best Supporting Actor for his performance in Good Will Hunting.

Ordinarily, after the death of such a talent movie producers, studio and television executives clamour to re-issue old footage, found footage and new footage for a quick buck.  Not so with Williams.

In a unique legal move, Williams has banned the use of his appearance for a period of 25 years after his death.  Though not strictly speaking, comprising part of his Last Will and Testament, Williams transferred, upon his death, all rights to his identity – name, voice, signature, photograph, likeness and right of privacy/publicity – to a not for profit organisation the Windfall Foundation and cannot be used until 2039.

A Trust was created that controlled Williams’ identity with the man in sole control of that Trust, it was the innovative thinking to hard-wire a transfer of his identity and control of the Trust upon his death that has not yet been seen and may pave the way for other celebrities to follow suit and preserve their greatest asset and benefit charitable institutions.

It is thought that the Trust was created, not long before his death, in such a way to avoid potential significant taxation problems associated with deceased estates.  It is taxation, including significant penalties totalling US$700 Million facing the estate of the late Michael Jackson that continues to cripple what might have been a substantial benefit, rather than noose, for his children.

Williams left behind a widow and 3 children, Zelda, Zachary and Cody.

Taxation considerations are ever present when considering how to construct and draw your Will.  Will drafters must sometimes think outside the box to pre-emptively avoid problems before they arise.

Good advice from experts in the field who remain up to date on legislative changes and drafting trends remains critical to establishing an effective and thorough estate plan.

Come and visit Jason Coluccio or myself, Greg Welden, at our office in Prospect to discuss your estate plan and how we might assist you or answer your questions.

Take a look at the original Trust Deed here.

Download our Wills Brochure here.

Estate Planning Specialist Greg Welden explores the dangers associated with DIY Will kits.

DIY Will Kits have been around for a while now and are readily available for the fraction of the price of having a Will prepared by a lawyer. In fact, you can probably pop down to your local post office right now and pick one up for less than the cost of an average pub meal.  I must agree that the promises put forward by these kits makes them seem rather alluring to the average lay person.  I mean, who doesn’t like to save a few dollars?  I know I do.

However, before you race off to buy one, you owe it to yourself to do some research to determine if the promises made by these kits really stack up and if a Will Kit is really capable of meeting your every need.

First things first…..a document must only comply with the conditions set out in the Wills Act to be considered a legal Will, such things like it must be in writing and executed by the testator and in the presence of two or more witnesses present at the same time with the witnesses also signing.

So yes, something written on the back of the proverbial “corn flakes packet” might be a valid Will.

The issues with Will Kits arise after the person who wrote it has died and their family or loved ones are attempting to administer their estate.  It is usually necessary for an executor named in a Will to apply for Probate (a formal process of proving the Will through the Supreme Court of South Australia).  It is at this time problems might arise which can often lead to delays in administering or finalising an estate and also lead to additional expenses in trying to rectify or resolve the issues that arise.

Some of the issues associated with Will Kits that I have seen over the years are:

the executor nominated has since died and there is no substituted executor named;

1. the executor nominated has since died and there is no substituted executor named;

2. the testator gifts a specific bank account to someone but at the time of their death they had changed banks leading to the gift failing;

3. the testator not having disposed of their entire estate leading to a partial intestacy (distribution according to legislation set out by Parliament);

4. the document not being signed correctly (or at all) and not being dated correctly (or at all);

5. the names of executors or beneficiaries being incomplete or incorrect leading to confusion;

6. salacious and scandalous comments being made in a Will requiring an application to a Judge to have them removed;

7. conditions being placed on certain gifts (…”X can have the car but only if he leaves that wife of his that I hate”…) which are either offensive, against public policy or impossible to meet or enforce;

8. a testator wishing to gift property which they own jointly with another such that the property never falls into their estate and ever be capable of being gifted;

9. the Will being revoked by marriage resulting in a distribution the testator did not want;

1. Divorce (not simply separation but the formal legal act of divorce) revokes any reference to the former spouse by way of executor or beneficiary or power of appointment in the Will.

Each of the scenarios described above (and indeed there are no doubt many more of these) has the potential to create serious delays and significant expense when it comes to finalising the estate.  It is impossible for someone without legal training to independently prepare a Will that takes into consideration the wide range of situations that might eventuate.

Using a Will Kit as a tool for estate planning can be likened to using google to diagnose your own medical complaints.  It might work out alright in the end but if you get it wrong the results can be oh so very, very bad.

A solicitor (ideally one experienced in all facets of Estate Planning) will take you through the myriad of possibilities (both now and into the future) to ensure your Will is as robust as possible and can stand the test of time.  All of your questions can be answered and an approach to writing your Will may be raised which had not previously been thought of.  There may also be other strategies available to you to avoid unwanted consequences or avoid a potential inheritance claim.

Have you considered how your superannuation or life insurance will compliment your overall estate plan, do you know who may have a claim on your estate and how best to deal with that, what tax consequences might arise in administering your estate which can be negated?  Well, an experienced estate solicitor can deal with all of these issues and many more.

While the DIY Will Kit is a cost effective approach to Estate Planning it is one fraught with risk.  In fact, while you may save a few dollars now by writing your own Will you stand to leave your family with legal expenses (potentially totalling many thousands of dollars) after you die, in an effort to fix it up.  In fact, as alluded to in the title of this article, the only person who really has anything to gain from DIY Will kits is the lawyers, who will reap large fees to fix up the legal messes that they create.

Is it really worth it?