Estate Planning and Wills

A few recent cases before various superior courts in Australia have reiterated the need to obtain appropriate legal advice at the time of drafting a Will to ensure that your wishes properly explained and carried out after your death and to avoid costly Court intervention.

In the matter before the Supreme Court of Queensland, In the Will of Thomas Henry Finch (dec’d) [2018] QSC 16, Mr Finch had made a gift to a beneficiary consisting of ‘the real property owned by me’, however, Mr Finch only owned a relocatable home which was positioned in a retirement village, and so he leased the land but did not own it. Mr Finch therefore did not own any ‘real property. This issue caused disagreement between the appointed Executors and so they sought to be removed as Executors and have an independent Administrator appointed. The Administrator then applied to the Court seeking that the clause referring to ‘real property’ be rectified so as to instead use the words ‘my house’. They approved the application and made an order for the words ‘my house’ to be substituted into the Will on the grounds that Mr Finch did not own any real property at the time that he made the Will, and so it must have been his intention for the gift to refer to his relocatable home.

Unfortunately, this relatively minor error ended up costing the estate a substantial amount of time and money to rectify and could have been avoided had more detailed investigations as to Mr Finch’s assets been undertaken by the solicitor at the time of drafting the Will.

In the case of Islik; Kimmer v Kaynak [2018] VSC 59, heard by the Supreme Court of Victoria, Mr Islik had made a Will in 2014 and then made another Will in 2015. Unfortunately, Mr Islik’s 2015 Will was a home Will kit and there was no clause to say that the later Will revoked all previous Wills. Therefore, the Executors had to determine how the two Wills worked together and if any clauses of the 2014 Will were revoked due to the introduction of clauses in the 2015 Will. Two beneficiaries and the Executors applied to the Court for assistance in understanding the final effect of the two Wills and distributing the estate.

The Court did make a final decision about how the estate should be distributed, however, given that the applications to the Court were made in November 2016 by the beneficiaries and January 2017 by the Executors and the final judgment was not handed down until 15 February 2018 after a two-day hearing, it is clear that again, a significant amount of time and money was wasted in sorting out this issue to ensure that Mr Islik’s final wishes were carried out pursuant to his intentions.

Children in Estate Planning and Wills

Another common misunderstanding is that when the word ‘children’ is used, it refers to biological children and children who have been formally adopted, but not step-children, children who have not been formally adopted or children who have been formally adopted by another person.

It is therefore vital that Wills are only drafted by people who understand the law, such as qualified and experienced legal professionals. Otherwise, you run the risk of your wishes not being carried out, and possibly requiring costly, inconvenient and stressful Court intervention for your Executors and beneficiaries after your death.

Please contact us if you require assistance with making a new Will.