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Legal Tip 65: Free wills cost a fortune

Discussion in 'Legal Issues' started by Terry_w, 22nd Aug, 2015.

  1. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Free wills cost a fortune


    Many people draft their own wills or use will kits, or now even apps, to do their wills. They think they are saving money but this often backfires after their death. Often the wills are completely or partially invalid. Others may have wording that is imprecise and needs an application to the Supreme Court to try to interpret what the testator meant by certain clauses.


    Making an application to the Supreme Court is going to cost a fortune. Even if there is no one contesting the meaning the executor may still need to make application to protect him/herself. A simple application may end up costing at least $10,000 and if there are various parties agitating for different positions it could be drawn out and cost upwards of $50,000.


    A recent case Rainoldi v Rainoldi [2015] WASC 312 http://decisions.justice.wa.gov.au/...nts-WebVw/2015WASC0312/$FILE/2015WASC0312.pdf


    The testator wrote his own will and it was unclear what he meant on 5 points in his will.It was the up to the court to try to decide what he meant. Which is not easy.

    There are 4 principles the court uses:

     
  2. Beelzebub

    Beelzebub Well-Known Member

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    I don't understand why so many people think they can write their own will. It's a complicated legal document outlining the division of (usually) significant assets.
     
  3. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    I did a 2 year masters degree in wills and estates. This is on top of the usual lawyer training. Just goes to show how complex it can be.
     
  4. RPI

    RPI Property Lawyer, Town Planner Business Member

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    It's like insurance where people buy the cheapest one and then complain about how bad it is when you have to claim, except in this case you aren't around to claim, it is your loved ones that get lumped with it.
     
  5. Azazel

    Azazel Well-Known Member

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    Is there a way to make it iron-clad so family can't challenge it? I guess if there was, plenty of people would have done it by now.
     
  6. RPI

    RPI Property Lawyer, Town Planner Business Member

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    There should be, but NZ introduced a Family Provision concept and we followed. Hard to claim FP if every gets a fair share but what if you cut out your blacksheep for a very good reason, there is still a good chance they can bring an FP and it is often cheaper to roll over.

    TW will be able to give a much more detailed answer than I can
     
  7. HomePage

    HomePage Well-Known Member

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    If you are completely happy with the way your assets would be divided up if you died intestate, why would you bother with a will?
     
  8. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Do you know the intestacy rules? No opportunity for tax planning no asset protection planning. What if your spouse gets everything and she/her remarries and then dies? What if you and spouse both die together?

    Disposal of the body. Guardians of children. Superannuation paid into the estate?
     
  9. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Not possible because any 'eligible person' can make a claim. If you had no eligible persons then there would be no one to make a family provision application, but there are other ways a will can be challenged.

    It is also possible for someone to agree not to challenge a will.
     
  10. HomePage

    HomePage Well-Known Member

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    Yep, I'm good with all the default provisions of intestacy related to such matters. Do I still need a will?
     
  11. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    No one needs a will but it will be a good idea to have one. see my comments above.

    If you don't have any assets that can pass on then maybe not.
     
  12. Beelzebub

    Beelzebub Well-Known Member

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    You definitely don't need a will. Does absolutely nothing for you: In fact the whole document is all about giving your stuff to other people and you of course are dead. So paying someone money to create document that only operates when you're dead and is designed to give your stuff away is not something someone needs.

    However, wife and kids might see things differently. And then there's the enduring power of attorney etc.
     
  13. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    ha ha - yes you will be dead so it won't benefit you. BUt will benefit others.
     
  14. Azazel

    Azazel Well-Known Member

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    You tell us @Beelzebub , "Hey, you don't need a will guy, forget about it!" ;)
     
  15. Beelzebub

    Beelzebub Well-Known Member

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    That reference has gone straight over my head?
     
  16. sanj

    sanj Well-Known Member

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    Are you on drugs or being sarcastic?
     
  17. Beelzebub

    Beelzebub Well-Known Member

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    I'm going to say both.
     
  18. Beelzebub

    Beelzebub Well-Known Member

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    In case anyone wasn't clear: My terrible joke was an attempt to make the point that person who makes the will doesn't benefit, it's the beneficiaries of the will that benefit. Because the person who made the will will be dead.
     
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  19. Azazel

    Azazel Well-Known Member

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  20. Beelzebub

    Beelzebub Well-Known Member

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    Damn, I'm disappointed in myself for not picking that one up