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5 April, 2012 | Mimi Lewell
There are strict laws governing what must be included in a will, how it must be witnessed and what can and can’t be included. If anything is done incorrectly it will incur further costs and delay distribution to your family. Bad decisions can also lead to additional costs and delays.
Not getting sound legal advice can lead to:
A will or “testament” is a declaration stating what a person (the will-maker) wants done with his or her property after death. A will takes effect only after the death of the will-maker.
The will-maker appoints one or more persons as the executor, and the executor(s) have the authority to administer the estate in accordance with the instructions in the will as to how the will-maker’s assets are to be distributed.
In one situation we experienced, a family friend was appointed executor because the adult daughter of the person who died, who was also the sole beneficiary of the estate, believed that she could not be appointed as the executor because she was the person who was to inherit under the will. This is not true. An executor named in the will can also be one of the beneficiaries or even the sole beneficiary of the will. In many cases it is advantageous for the sole beneficiary to also be the executor.
In this instance, because the executor was not also a beneficiary under the will, the executor was advised not to distribute the estate until six months from the grant of Probate due to the possibility of the executor being held personally liable if a claim were made on the estate prior to six months (after six months from the grant of Probate any claimant would have to follow the distributed funds to the beneficiary who has received them).
If the sole beneficiary of an estate is also the executor, the estate assets can be distributed prior to six months from the grant of Probate because the beneficiary and the executor are one and the same person and any claimant would have to follow the funds to the beneficiary anyway.
There is also the situation where the executor or executors are in another city or overseas. In this case the documentation, including the original will, would need to be couriered to solicitors in another city or country who would need to make arrangements with the executors to sign the documents at their office. This happens quite often, but also generally incurs more cost.
Not specifically appointing executors and / or clearly instructing how the assets are to be distributed:
If a will does not state clearly who is to be the executor, or does not specifically set out who is to inherit the assets, it may still be possible to obtain Probate and appoint someone as the executor “under the tenor of the will”. However, to have someone appointed under the tenor of the will takes more time and incurs more cost.
This can cause confusion when it comes to administering the person’s estate. For instance, if there was a situation where an executor is referred to as “John Smith” instead of “Jonathon Anthony Smith”, and there are several John Smiths in the family, it then becomes more difficult to obtain Probate. It will usually be necessary for some member of the family to swear an affidavit to say why he or she believes that particular “John Smith” is the one the will-maker had intended to appoint as executor.
Likewise, in the case of a beneficiary not clearly named in the will, at the time of distribution it can be unclear who is to inherit that portion of the estate. This may lead to litigation over who really is the intended beneficiary.
It is advantageous to get legal advice on the three types of claims that can be made on an estate: Testamentary Promises claims, Family Protection claims and Relationship Property claims. Not getting legal advice can lead to the will being left open to be challenged by one of these types of claims.
A will should be witnessed by two independent persons who are in the presence of the will-maker and in the presence of each other when the person signs the will. If a will is not witnessed in this manner, it may be possible under the Wills Act 2007 to obtain Probate, but this will be time consuming and incur further cost.
A person who is to benefit under the will cannot also witness the signing of the will. If a beneficiary named in the will is also a witness to the signing of the will, it may lead to the will being declared invalid.
With all wills any unusual marks have to be explained in order to obtain Probate. These include items that have been crossed off, stamps or smudges, marks that indicate staples may have been removed and even indentations showing that something may have been paper-clipped at one time to the will. In the case of staple holes or paperclip marks it will be necessary for someone to swear an affidavit explaining how the marks got there and stating that nothing else was ever previously attached to the will.
We had one hand-written will that was done on the back of a computer print-out. In this case we had to get an affidavit from the daughter of the man who died, explaining that her father didn’t like to waste paper and so re-used the back of a print-out to write his will – this delayed administration of the estate, and incurred further costs.
Incorrect spelling of the will-maker’s name, incorrect spelling of the executors’ names, omission of the first name of one of executors and omission of the surnames of the beneficiaries – all of these things have to be explained by affidavit evidence.
We received a hand-written will that was done on a pre-prepared will form where the attestation clause had not been filled in properly in accordance with the instructions on the form. This changed the meaning of the clause and it had to be dealt with by affidavit evidence from one of the witnesses.
We received a hand-written will that was done in hospital where the will-maker was gravely ill, and he died not long after signing his will. The will-maker did not specifically appoint an executor, meaning that we had to get affidavits from the two nurses who witnessed the signing of the will. The nurses had to state that they believed the will-maker was intending to appoint a particular person (who was mentioned in the will) as the executor and they also had to explain why they believed this.
In this same example we also had to locate the doctor who was attending on the will-maker in hospital, and get an affidavit from him regarding the person’s mental capacity at the time he made his will. All of these things incur more cost.
In this particular case it took years to obtain Probate because the will did not specifically appoint an executor, and therefore it was not entirely clear that it was indeed a will.
In all of these cases additional costs were incurred, sometimes mounting up to thousands of dollars in extra legal fees. They also dragged out the process, causing stress and taking up hours of the executors’ and beneficiaries’ time. Spending a little bit of money to get sound legal advice and to ensure your will is properly drafted will save your family heartache at an already stressful time.
5 April, 2012 | Mimi Lewell