Writing a will is vital, and in response to David Wilson’s June article in the Canberra Times, I’ll have to agree with him there. But that’s it.
There’s value in seeking professional help when it comes to drafting your Will but it’s the advice that comes before it that holds a higher value. The task of writing a Will is not simply a Do-It-Yourself,(DIY).
Expert advice will ensure you get an appropriate Will with an appropriate executor and backup provisions if your executor unexpectedly dies before you.
Your Will should be reviewed periodically and particularly whenever significant events occur in your life, including marriage, separation, purchase or sale of assets, and of course, the birth of children. However, a properly drafted Will does not need updating constantly to remain current. Part of the art is in the drafting and covering likely foreseeable events.
Family provision claims (challenges against Wills), are a growing area of law and the risk is not prevented by simply expressly stating in your Will that someone is “excluded”. Regardless of your circumstances, expert advice is required and highly recommended to ensure your family provision risks are minimised and strategies developed to address the risks if necessary.
Wilson also neglects to point out:
- Assets such as superannuation and life insurance are not part of your estate and are not affected by the terms of your Will;
- Jointly owned assets are not part of your estate and most automatically pass to the surviving joint owner;
- Conducting a thorough analysis of how assets are owned is essential to drafting a Will correctly. Saying you leave your printing business to your daughter is no good if it is owned by your company and you leave the rest of your estate, including your shares in the company, to your spouse; and
- The legal fees paid in sorting out poor or no estate planning is generally far in excess of those paid in getting a good estate plan done in the first place.
All too often lawyers working in this area have to deal with the unintended consequences arising from poorly drafted “do it yourself” Wills. If you want my opinion, seek out some expert advice to ensure your Will is done right.
Brendan Cockerill is a Business and Succession Lawyer at Dobinson Davey Clifford Simpson, 18 Kendall Lane, New Acton, Canberra ACT 2601 and can be contacted on (02) 6212 7600.