Will Preparation – Informal and Inoperative Wills
As a general rule, the Courts try to give effect to the intention of Will makers, even where a Will may have been drafted by the Will maker themselves without being properly signed or witnessed. This is the reason why proper Will Preparation is so important.
Wills that are not properly signed or witnessed are often referred to as ‘Informal Wills’. An Informal Will can, however, present difficulties such as where the Will is drafted so that it does not deal adequately with the Will maker’s assets.
A recent 2018 case heard by the Supreme Court of NSW illistrates how minor issues in Will drafting can be overcome.
In this case, the last Will of the deceased did not meet the formal requirements for signing of a Will because it was signed by only one witness, not two witnesses.
The Will did, however, provide the name of the deceased’s chosen Executor, State what the deceased intended for the disposal of the whole of his estate, set out the beneficiaries whom the deceased wished to benefit, and it was signed by the deceased himself.
For these and other reasons, the court in this case upheld the Will.
In contrast Brazel Moore Lawyers recently dealt with a matter where the deceased made a valid Will which, although properly signed and witnessed, was ultimately an inoperative Will.
The Will was correctly signed and witnessed, however, it did not deal with all of the deceased’s estate, In the Will, the deceased made a number of specific gifts of property for assets which no longer existed when he died and the balance of his estate, called the ‘residuary estate’ was not dealt with by the Will.
Because the Will lacked a ‘residuary clause’ it meant that the ‘residuary estate’ of over $200,000.00 was not dealt with by the Will.
In the circumstances, there was an intestacy’ and a Government formula on how an estate should be distributed for someone who does not leave a Will when they die applied to how the residuary estate was to be distributed.
There is no prize for guessing that under this Government formula there were beneficiaries who received a share of the estate that the deceased did not intend should inherit any part of his estate from him. It also added significantly to the costs of administering the estate, the cost of which was borne by the beneficiaries.
Everyone should make a Will, but drafting one on your own can be challenging and have unforeseeable (and potentially costly) consequences. You should always seek legal advice from an experienced Estate Planning Lawyer regarding your Will preparation.
Should you have any enquiries, call Geoff Brazel, Estate Lawyer on 02 4324 7699 to make an appointment to make your will or reserve your seat at our upcoming Free Wills & Estates Seminar.