Celebrities are not immune from this either, take for example the ‘out of date’ Will of Heath Ledger.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In certain circumstances it can be even more dangerous to have a Will that is out of date.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.

I drafted my own Will using a Will Kit a couple of years ago, but my circumstances have since changed and I want a few things altered.  Is it okay if I just handwrite the changes in the margin and then sign and then date those changes?

 Is it okay?  The simple answer to this question is no, absolutely not; but the complex answer to why this is the case is not so straightforward.  Firstly, a Will, or any changes made to a Will must be made in the presence of 2 witnesses.  In either situation, each party must sign.  If not, then according to the Wills Act when the document is lodged with an application for probate, the document may be referred to a Judge to determine if the handwritten alteration was actually part of the “Will” and that can become very expensive.  According to the Wills Act, no alteration in a Will has any effect unless executed as a Will.

Consider the true case of Mr Barnes (name altered).  He made a Will in handwriting using a Will Kit form on 8 December 2004.  He appointed his wife as executor and left his whole estate to her. He provided for particular items to pass to certain people and then, if his wife died before him, his estate was to be equally divided between his two children, one of who was named the executor.   One week later Mr Barnes’ wife was admitted to hospital with a heart attack and died. The following day Mr Barnes’ Will was placed with a bank for safe keeping and it was never removed until his death.  It can be assumed therefore, that from the time the Will was lodged with the bank it was not altered.  However, following the death of Mr Barnes a couple of years later, it was discovered on the original Will, the handwritten addition of a few lines in a different pen of various comments.  This included words to the effect that the directions in his Will were to take effect only if his wife died before him.

This alteration was not signed or witnessed.  In this situation the document was referred to a Judge who concluded that the handwritten alteration was made after Mr Barnes’ wife had a heart attack but before she died, one day before the will was lodged at the bank. It determined that the final few lines of handwriting were intended by Mr Barnes to constitute his Will.  What this meant was that the Court decided these words meant that Mr Barnes wanted his Will only to operate if his wife pre-deceased him. As Mr Barnes’ wife had died before him, the addition of these words meant that the Will was virtually useless.

Accordingly, the Court determined that Mr Barnes died intestate (without a Will).  Fortunately, in this case such a determination had little impact upon the final distribution of his estate.  However, it serves to highlight the risks associated with making handwritten alterations on any Will (Will Kit or otherwise), with any changes being made in accordance with the requirements of the Wills Act.

Even the smallest blemish, mark, alteration (intended or unintended) on an original Will can cause significant difficulties, expense and delays in the administration of your deceased estate.

It is prudent to seek advice from a solicitor experienced in drafting Wills before making any changes to a Will.  A solicitor is best equipped to provide you with appropriate advice related to the changes being made and the long term implications of such changes.  Furthermore, any changes will be made with the ‘peace of mind’ that they are completed in a manner congruent with the Wills Act using documents such as a Codicil.  For advice on Wills and Estate matters contact Greg Welden, Jason Coluccio or the team at Welden & Coluccio Lawyers.

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?

I just love a clean slate.  I think it goes back to my primary school days when we trundled into school late January to collect our tidy bundles of new stationery, complete with perfectly sharpened HB pencils and crisp white interleaved notebooks.  I think it was the promise of new beginnings and of new opportunities that I relished.  Perhaps I was just pleasantly asphyxiated on the fragrance of all those freshly cut trees.

Happy New Year!  Of course, in the spirit of making the most of a clean slate, the New Year is the perfect time to reassess your current situation.  I am not just speaking of starting that clean-eating regime  (although you really should do this; bring on the detox). No, I am talking about a complete re-evaluation of your financial and legal affairs.

So where are you now, and, what is happening in your life?  Perhaps you are about to buy a new house or have sold an existing property?  You might have started a new relationship (lucky you)?  You may have even ended one?  Maybe you’ve just retired or are thinking about doing this in the next year?  Births, deaths, marriages, divorce, they all call for a careful re-evaluation of your finances which also requires a reassessment of how all these events are dealt with in your Will.

The New Year is the perfect time to review your wills and estate documents to ensure that they reflect your current (potentially altered) circumstances.  This year I ask you, as you box away your Christmas prezzies; to ask yourself some simple questions.   Is my Will still relevant? Would it still meet my needs should the unthinkable occur?  Better yet, if you still have not managed to get your Will drafted, I implore you to make 2017  the one that you nailed it.

Welden & Coluccio Lawyers; the Estate Specialists are happy to assist you with all your legal needs.  For more information or for a consultation please contact Jason Coluccio or Greg Welden on 7225 8703.