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Danger in DIY wills

wills

Do I really need an expert to draw up my will?
These days there is an app for everything, and wills are no exception. Smartphone-based apps are the latest addition to the do-it-yourself will market, which also includes both paper-based and online kits. All claim to offer a cheap and easy way to sort out what will happen to your assets after your death. But some experts warn that by making it too easy, you could be setting up potential problems for your beneficiaries.

Make it stick
Contesting wills provides field days for lawyers. There is no shortage of court cases where wills have been contested, and in many cases judges have completely changed the will to include unintended beneficiaries.

Anna Hacker, national manager for estate planning at Equity Trustees, says will apps don’t take into account the nuances of your personal relationships and circumstances, and can’t be proactive in helping to deal with potential difficulties that may arise in the same way that a professional can. She says another danger is the growing trend to use videos as either a digital recording of, or supplement to, the will. While the idea of being able to personally express your wishes, and update them when you want to, is appealing, Hacker says confusion can arise if the video is not identical to your written will. Which version is legally binding? Even a minor difference may give cause for your will to be challenged or revoked.

DO: Make a will. Up to half of all Australians die “intestate” (without a will). In this case your estate is distributed by a set formula, which may not accord with your wishes. The formula differs by state and can include distant relatives.

Common misconceptions
While the law differs from state to state, Hacker says the approaches to challenging wills are similar and there are commonly held misconceptions across the country. She says one is the idea that beneficiaries cannot challenge a will.

So you may think that giving a token $100 to that son you fell out with 20 years ago will ensure he has no further claim on your estate. In fact, she says, you can’t contract out of an estate challenge and, by leaving him $100 instead of nothing, it almost gives him a foot in the door to demand more.

Similarly, she says, giving reasons for excluding someone can be counter-productive. In fact, if that person feels slighted, it may even spark a challenge. She says a better approach is to put your reasons in a separate letter that can be used if needed. Another common recommendation is to use a separate statutory declaration to set out the reasons.

DO: Be aware that judges have overturned wills where a dependant or former dependant (such as an ex-spouse) has shown they merit a share in your assets. Laws differ by state so be aware of potential claims before excluding someone.

Hacker says another common myth is that the estate automatically pays the costs of any challenge to the will. While this is not uncommon (and reduces the pool for all beneficiaries), she says courts can order people who fail in their challenge to pay costs for the estate as well as themselves.

She says many people also believe that family members acting as executors can’t be paid to administer the will. In fact, there is nothing preventing this and a growing number of executors are asking for payment, especially where administering the will is complex and time consuming.

While many people believe they need only a simple will, Hacker says the growing complexity of family relationships and how we earn our incomes has resulted in many people’s circumstances being less straightforward than they might think. Blended families, ex-partners and ownership of assets that pre-existed current relationships are just some of the factors that must be taken into account.

DON’T: Assume that once you’ve done your will, you can set it aside and forget about it. It will need updating as your circumstances change. Events such as divorce can even cancel the terms of your will.

Court battles have also been fought over the existence of multiple wills where it is not clear which is the valid version.

TAKEOUT TIPS
• Guarding against potential challenges is an important consideration when
drafting your will.
• Potential beneficiaries can overturn your wishes even if you have specifically excluded them.
• Online apps and other do-it-yourself tools can be useful in framing a will but, if you want to ensure your wishes are followed, it is worth getting it looked over by a professional.

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