APS Legal & Associates

MISTAKES TO AVOID WHEN DRAFTING A WILL

There have been several cases recently hitting the headlines where disappointed beneficiaries have challenged the will of a family member on the basis that their expectations of inheritance have not been met. Figures released show probate cases that were contested and reached the High Court increased in 2017 compared to 2016.

So does this mean that writing a will is an exercise in futility? No, a will can considerably reduce the chances of litigation. While the law allows individuals to voice concerns over an individual’s inheritance, producing a will shows the intentions of the testator/testatrix at the time and where they would like their assets to pass.

Dying with no will means the distribution will follow the laws of intestacy which may not reflect the wishes of the deceased. Writing a will is in most cases a simple task, it can be written on a post it note! However, there are certain requirements that need to be adhered to in order for a will to be valid and seeking professional advice when considering the contents is money well spent. Therefore, while you can create a will online or by buying a pack from your local Post Office or stationary shop, a professionally drafted will can eliminate mistakes that can cause significant problems for your family.

Whether making a will independently or professionally below are three instances to make you more aware of the process and to help to eliminate mistakes and minimise the chances of disputes when you have passed away.

Dying Intestate. This is probably the biggest mistake to make when it comes to estate planning. While no one wishes to consider what would happen when they pass away or the fact that they are going to die at all, it is one step that should be taken. A will details where you would like your estate to pass and who receives specific assets and heirlooms. There is little point putting in place financial arrangements during lifetime if on your death these assets do not pass to your intended beneficiaries. Suppose you wanted your children to be supported through further education, or you wanted to create a trust fund for them until they attended a specific age. One of the main purposes of making a will is to interfere with the imposed line of succession created under the intestacy rules. Without a will the law dictates where your estate passes.

Drafting your will incorrectly. While you can draft your will yourself as mentioned above, the important thing is to get it right. If any of the details in the will are not precise, the will can be easily contested. It is important that all personal details are correct including your full name and address and the full names and relationships of beneficiaries (so that they can be easily identified by your Executors). This can limit confusion and disputes at a later stage. One of the most important aspects of creating a will is to ensure that it is signed correctly. A Testator/testatrix needs to sign in the presence of two witnesses, who must then sign. It is equally important to ensure that your will states that you are revoking any previous wills. Consideration is required in regards to your capacity and that you are of sound mind and not under any undue influence. All these aspects are discussed and noted in minutes of a meeting if a professional is drafting your will. If a person is elderly or is ill then it is recommended that a doctors certificate is obtained.

Not updating your will. Once you have created a will, the worst you can do is think that no more needs to be done. If your personal or financial circumstances change then your will may need changing to reflect this. There is no limit to how many times you update your will. The products within your will i.e. trusts, may no longer be applicable due to a change in circumstances or changes to the law. If this is the case then your will will need to be revised. Updating your will is not difficult; you can draft a codicil or make a new will. However, in both cases they will have to follow the signing requirements as mentioned previously otherwise they will not be valid.

These are just some of the many issues faced when planning what happens to your estate. Professional advice can help eliminate the chance of these errors and so ensure your wishes are carried out smoothly at an already very difficult time for your loved ones.

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