Bowen Buchbinder Vilensky

A Cheap Will Is A False Economy

by
The Australian, Bowen Buchbinder Vilensky, April 2012

‘Make a Will’ campaigns have done a great job of raising awareness about an important issue. But what kind of wills have resulted? As a Wills and Estate Planning lawyer, I spend more time than I should dealing with the unintended consequences of badly drafted ‘Do it Yourself’ wills.

Bought for as little as $40 from a newsagent, twenty minutes spent sometimes quite carelessly completing the legal looking document, presented on sturdy parchment with elegant calligraphic heading, and people assume they have a sound and robust legal instrument in place. 

In many cases, sadly, they have the exact opposite. 

The soundness of a will has little to do with the quality of the paper on which it is written or the elegance of its calligraphic header. Like any legal instrument, a will is only as good as the person drafting it. There is nothing wrong with a home made will for a very, very simple estate. But I’ve had too many otherwise well-adjusted individuals in my office passionately cursing their old man after his death, to realize that most DIY wills, crudely contemplated or poorly drafted, create a turmoil and expense which is vastly disproportionate to the relatively small cost of having a will properly drafted in the first place. 

Poor drafting 

DIY wills are often not properly witnessed, have scratchings out and hasty amendments sometimes made shortly before death in various coloured inks, or have other small but critical details missing. I’ve seen coffee mug stains, incomplete notes contemplating who might inherit the Norman Lindsay etchings and (once) doodles and faces drawn in the margin. When an estate goes through Probate, legal costs in addressing these problems to the satisfaction of the Supreme Court Probate Registry quickly mount well beyond any ‘savings’ that may have been made by DIY drafting. 

Home made will writers sometimes try to emulate what they think a will ‘ought’ to sound like, using baroque legalese that creates terrible ambiguities. These ambiguities usually escalate tensions dramatically and cause dispute between beneficiaries about what the will actually means. If such a dispute can’t be negotiated, the only option is litigation. This almost always comes at an emotional as well as financial cost. In such cases the Court can be invited to determine what the Will actually means, and its findings rarely satisfy everyone. 

Whole estate planning 

Another common failing of wills is that they often don’t appoint the right executor, or don’t deal with all of a person’s estate. If there are assets that need to be dealt with by a Court, the cost to the estate can be considerable. 

A surprising number of people are unaware that the assets held in their SMSF are not subject to their will. Instead, the trust deed of the SMSF deals with assets held in the fund. An example of how things can go wrong is in a blended family situation where a man leaves everything in his will to his second wife and leaves everything in his SMSF to his children from a previous relationship. If the trustee of the SMSF is his second wife, without a binding nomination she may decide to direct the SMSF assets to herself or the estate, of which she is the sole beneficiary. A binding nomination can prevent this happening, but few investors for whom this is relevant are aware of its importance. 

Similarly, assets held in discretionary and other trusts are not covered by a person’s will. To this end, no will, DIY or otherwise, will suffice unless drafted to deal with such issues. 

Blended families 

Our current social reality of de facto relationships, increasing divorce, blended families and higher property values has its own consequences for estate planning, making it not only more involved, but also more dynamic. The days when Mum and Dad could draw up their wills, before consigning them to the bottom drawer of their filing cabinet for the next twenty years, are long since over. 

The blended family scenario greatly expands the range of people who may feel some sense of entitlement when a person dies and who may well step forward to challenge a will. And as estates increase in size, so does the likelihood of a contest. An estate worth $1million or more is a ripe target for disappointed beneficiaries, and that amount is nowadays not at all unusual to leave behind. 

Summary 

All of this underlines the critical importance of three things. First, have a will that is both well considered and properly drafted so that not only are the writer’s intentions clear, but they are presented in such a way that discourages a challenge.Second, the importance of having in place whatever additional legal instruments are required to manage assets outside the estate – such as the trust deed of a SMSF. And third, with the constantly changing landscape the need to review one’s estate plan regularly – I recommend every 18 months – to ensure that it is still relevant and comprehensive.

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