What’s wrong with a will kit??
Just like you would pay for insurance to protect your home and contents, or pay for health care, you should make sure you have a comprehensive, properly drafted will to ensure your assets are properly protected and go to their rightful beneficiaries after you die.
Cheap do-it-yourself will kits are available from newsagents or online providers, and some law firms provide similar template wills for similarly low prices. But, without proper legal advice, preparing your will this way may end up costing your estate (and therefore your spouse, children or other beneficiaries) several thousands of dollars.
Compared to the potential costs if something goes wrong, obtaining proper legal advice about your will from a suitably qualified and experienced solicitor is a wise investment.
What is a will?
A will is a legal document that sets out your directions about how all of your property (commonly referred to as your estate) is distributed after you die. A properly drafted will includes directions about real estate (i.e. your home), bank accounts, other cash savings, motor vehicles, shares, personal belongings including furniture and household furnishings, pets, and any and all other assets, as well as liabilities, trust funds or in some cases superannuation interests. The person making the will (i.e. you) is referred to in the will as the “testator”. People who inherit or otherwise receive gifts under your will are commonly called “beneficiaries”. The person you appoint to carry out your directions, including the sale of any assets and delivering assets or other gifts in accordance with your will, is called the “executor”.
Who should I appoint as my executor?
The terms “trustee”, “executor” and “administrator” are often used interchangeably in estate matters. While there are some legal differences between these terms, depending on your circumstances and what is happening with your estate, their roles are all very similar. Their role is to take control of your property after your death, and distribute your property in accordance with the terms your will and Queensland laws. You can appoint one or more people to fulfil this role. You can also appoint alternate trustees and executors in case the person you have nominated is unable or unwilling to undertake the role. Given the importance of this role, it is important that you nominate someone who you know is capable and trustworthy and would be willing to undertake the role. They do not need to be experts in the law: in many cases the executor and trustee simply needs to engage a solicitor to carry out the estate administration on their behalf, per their instructions.
Under Queensland law, a valid will must be made voluntarily, should be in writing, signed by the testator, witnessed by two people who sign in the testator’s presence, and made while the testator has testamentary capacity.
However, there are exceptions to these rules, including how a will can be written and witnessed, if there are special circumstances. In a 2017 Queensland case, probate was granted for an unsent text message found on the testator’s ‘phone after he died, which had instructions about his estate (Re Nichol [2017] QSC 220).
In 1948 a Canadian court accepted as a will a message that a ding farmer scratched into the fender of his tractor. Mr Cecil George Harris became pinned under his tractor in the middle of a field while working alone. He managed to carve a short will into the fender, leaving all of his estate to his wife, before dying.
What does ‘testamentary capacity’ mean?
Testamentary capacity refers to someone who has the legal capacity to make or alter their will. A person will have legal capacity if they are able to understand the nature and effect of the legally binding decision they are making and be able to communicate that understanding. A lack of testamentary capacity at the time of making or amending a will is a common reason for challenging a will.
If there is any reason to doubt your own testamentary capacity when creating or amending a will, for example a recent mental health issue it is best practice to go to your doctor and obtain a letter about your capacity to safeguard the validity of your will.
Why is it important to have a will?
A will allows you to decide how and to whom your property and possessions will be distributed, after you die. If you have children, it can also include who you would like to appoint as their legal guardian until they turn 18. It can also be used to stop your wishes being challenged, and stop your estate being distributed to people you may not want to receive an inheritance.
But most importantly, it means all of your affairs are in order and can be easily managed after you die. Having a properly prepared will is likely to avoid thousands of dollars being spent by your family or other beneficiaries, in unnecessary court costs and other legal fees, to settle your financial affairs.
What happens when you die WITH a will?
Usually, your executor will take your will to a solicitor with experience in estate administration, who will then advise your executor whether the will has been properly drafted, whether grant of probate is required, and if (if probate is necessary) assist your executor with applying for a grant of probate. A grant of probate is like a court order, issued by the Supreme Court of Queensland, which formally appoints your executor and empowers them to carry out your directions in accordance with the will. A grant of probate can be required if there are significant assets held on your behalf by other parties, for example savings in a bank account, real estate of a certain value, or other interests to be dealt with under your will.
What happens when you die WITHOUT a will?
If you die without a valid will, you have no control over how your property and possessions are distributed, or who distributes them. When someone dies without a valid will, they are commonly referred to as “intestate”. The estate of an intestate must be distributed in accordance with the Succession Act 1981 (Qld) (“the Succession Act”). Distribution of an estate under the Succession Act can be very complicated and confusing depending on the circumstances, so it’s usually wise to see a solicitor for some assistance. Even when families are agreed as to what should happen with your estate, there can be very expensive legal proceedings required in order to achieve the correct outcome if you have no will.
To be able to distribute the estate of someone who has died without a will, someone must apply to the Supreme Court of Queensland for a “grant of letters of administration”. This means that the court will assess the applicant’s entitlement to apply, their capacity to distribute the estate, and then give them permission to distribute the estate in accordance with the Succession Act.
Is there much difference between a cheap template will and a will drafted by a solicitor?
Yes! When it comes to wills, the words that are used and the way in which it is drafted are crucial. Everyone’s personal and family circumstances are different. If you don’t engage a properly experienced solicitor to discuss your estate planning needs, there is a the very real risk that a cheap will is going to end up costing your estate several thousands of dollars after your die.
Will I ever need to change my will?
Yes, it’s possible you will need to change your will at some point in your life. It is highly recommended that you change your will if there is a significant change in your personal circumstances, for example if you get married, separated, divorced, or have children. It is also important to change your will if your relationship with the people named in your will change, for example if you gift something to a friend, and subsequently have a falling out with them and decide you don’t want to give them that gift.
Ultimately, engaging with a properly experienced solicitor and having your will drafted properly, after receiving comprehensive estate planning advice, is worthwhile insurance that may save thousands of dollars. At Shorestone Legal we have been called upon to represent both deceased estates and beneficiaries, in complex legal disputes which could have easily been avoided if the testator has received proper estate advice and had a more comprehensive and suitable will drafted during their lifetime.
