- Despite being one of the most important documents that you will ever prepare, careless drafting or simple errors can lead to your will being invalidated.
- Although you cannot completely eliminate the possibility of a dispute arising in relation to your will, a well drafted will can significantly reduce that likelihood.
- You should consider updating your will following certain significant life events, such as a marriage, divorce or the acquisition or transfer of significant assets.
In 2006, much-loved Australian racing legend, Peter Brock, died tragically and prematurely in a motorsport accident. Between 1984 and 2003, Mr Brock prepared three separate wills. The 1984 will was drafted by Mr Brock’s solicitor, whilst the 2003 and 2006 wills were prepared using a type of DIY ‘will kit’. After Mr Brock’s death, a dispute arose in relation to the validity of the 2003 and 2006 wills. The Court ultimately determined that the 2006 will had no legal effect, as it had never been signed by Mr Brock, whilst the effect of the 2003 will was to merely appoint an executor without dealing with any property that formed part of Mr Brock’s vast estate. The dispute between Mr Brock’s family members continued for nearly three years, with the legal costs significantly reducing the value of his estate.
A will is one of the most important and consequential legal documents that you will ever prepare. Although you cannot completely eliminate the possibility of a dispute arising in relation to your estate, careful consideration of the following issues can help to minimise the time, effort and money expended by your love-ones in the event that a dispute does arise:
Appointing an executor
Your executor is responsible for ensuring that the terms of your will are carried out. An executor’s fundamental duties include:
- locating your will;
- locating and ‘realising’ the assets that form part of your estate;
- dealing with creditors, including paying outstanding debts and defending any claims made against your estate;
- arranging your funeral and burial or cremation;
- distributing your estate in accordance with the terms of your will.
Acting as an executor can be an onerous and often complex task. It is important that the person who you appoint to be your executor is willing to take on the responsibility, is trustworthy and is capable of executing their duties.
When appointing an executor, you should consider the following issues:
- Is the person capable and willing to act as my executor?
- Who should act as my executor if my first choice predeceases me or is not willing to act as my executor after my death?
Gifts and beneficiaries
Although the Court determined that Mr Brock’s 2013 will was effective in appointing an executor, it ultimately found that it did not deal with the issue of how his assets should be distributed.
When deciding how your estate should be distributed, some of the matters you should carefully consider include the following:
- Are there any specific gifts or items that you wish to leave to your family or loved-ones?
- If you wish to leave a substantial sum of money to a minor, should they receive that upon turning 18, or should that money be held on trust until they reach a later age?
- Should you use a testamentary trust so that beneficiaries under your will can manage their share of the estate in a tax-effective manner?
Something as simple as a vague or insufficient description of a specific gift can result in that gift failing. It is of vital importance that clauses dealing with gifts and beneficiaries are accurately and effectively drafted.
Reviewing your will
Mr Brock’s estate is in invaluable reminder that everyone should have an up-to-date, well-drafted will. Even if you have executed a will in the past, you should consider updating your will after any of the following events:
- transfer or acquisition of significant assets;
- marriage, separation or divorce;
- entering into a de facto relationship;
- death of a beneficiary.
Further Information and contact details
Pigott Stinson regularly assists clients in drafting wills and ensuring that their testamentary intentions are carried out. If you do not have a will, or if your personal circumstances have changed since your last will was executed, please contact one of our wills and estates specialists:
Daniel Fleming | Partner
Allison Wood | Senior Associate