8 reasons to have a lawyer draft your will

Date: Apr 30, 2012
Document Type: Article

With easy access to cheap and even free will kits why pay a lawyer to draft your will?

The formal requirements of a valid will are relatively straight forward. It must be:

1. in writing;

2. executed by the willmaker or by another person in the presence of and at the direction of the willmaker;

3. executed, or the signature acknowledged by, the willmaker in the presence of two or more witnesses present at the same time; and

4. attested to by each witness to the will in the presence of the willmaker.

It is what is in or not included in the will that often causes problems after the willmaker’s death.

Those problems can sometimes be avoided or their impact lessened by competent legal advice from an experienced lawyer during the willmaking process.

Capacity

Wills are often challenged by an assertion that the willmaker lacked testamentary capacity at the time the will was made. This usually occurs when the willmaker is old, unwell or close to death at the time the will was made.

In those circumstances an experienced lawyer can arrange for the willmaker to be examined by the willmaker’s doctor or specialist during the willmaking process and before the will is signed by the willmaker.

Any argument as to the willmaker’s capacity can be met by the doctor’s assessment and the lawyer’s evidence about the testamentary capacity of the willmaker at the relevant time.

Preferring Beneficiaries

If the willmaker does not provide or provide adequately in the will for a spouse, child, partner or a person with whom the willmaker lived in a close personal relationship, that person may be an eligible person entitled to make a claim for provision or further provision out of the estate.

An experienced lawyer can advise you about who is or might be an eligible person and what steps a willmaker might take to protect the estate from a Family Provision claim. Those steps can include a statement/statutory declaration from the willmaker setting out the reasons why  only some provision was made or why no provision was made.

Undue Influence

A common allegation is that a will is invalid because a friend or family member unduly influenced the willmaker. An experienced lawyer will see the willmaker on their own and keep file notes of the willmaking process including when and in what circumstances instructions to prepare the will were taken, who was in attendance on relevant occasions and for how long.

Those file notes can be useful and often essential evidence if proceedings are subsequently commenced.

Assets of the estate

What is an asset of the estate may not be clear to a willmaker. For example, a loan made to your son many years ago that has not been repaid is an asset of the estate unless you direct in your will that it not be and you forgive the loan. Similarly, a company loan account or beneficiary loan account will be an asset of the estate. If loan accounts are not dealt with appropriately in the will then it may result in liquidity issues for the company or trust.

Your superannuation may or may not be an estate asset depending upon how the will deals with your superannuation.

An experienced lawyer can advise you about what assets form part of your estate.

Ownership of assets

The ownership of assets can be complex especially where you own property jointly or have an interest in property legally owned by a company or trust. In some circumstances the willmaker might own property on trust for another that the willmaker considers his own.

The willmaker cannot bequeath property not owned by the willmaker.

An experienced lawyer can advise you of your rights and entitlements and the need to address issues of ownership before it becomes a problem not contemplated by the willmaker at the time of drafting the will.

Tax

How and to whom you leave your property can have tax implications.

An experienced lawyer can alert you to the tax implications of the will and refer you to an appropriate specialist.

Executors

An executor is entitled to claim commission in some circumstances. If the executor is a professional executor the willmaker should consider the fees likely to be charged as those fees can be a drain on the estate.

An experienced lawyer can advise you about the likely costs involved in your appointment of executor.

Safe keeping of Records

In most circumstances your lawyer will keep the original of your will in safe keeping. An experienced lawyer will also keep his file and file notes until your death and if appropriate your estate is administered That file and file notes can be invaluable if your will is challenged. You should advise your executor where your original will is stored.

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