Why it’s a bad idea to write your own Will

It is relatively easy to find a free Will template on the internet and fairly cheap to buy a Will “kit” from a newsagent or online. There are also websites that have “data collectors” that take your information and create a Will for you seemingly without any legal expertise required.

So, is it really a good idea to write your own Will?

 Why you need a valid Will

The sole purpose of writing a Will is that you can direct where your assets go when you pass away.

If you have a valid Will your executor applies through the probate process and distributes your estate in accordance with what you have written in your Will. If you hold joint property with your spouse probate is not usually required unless substantial assets are held in your own name.

There are many common situations however where a valid Will is required to properly distribute your estate and look after your family and loved ones.

If you have a Will that is deemed not valid by the probate court then your estate will most likely be exposed to delay in distributing your estate, increased legal and court costs and perhaps resulting in financial hardship and emotional anguish for your family.

Most people think that their situation is simple and that a DIY Will is enough but consider the following situations and whether they may apply to you or someone you know.

 Your home-made Will is lost or cannot be found

When a lawyer prepares a Will for you they usually hold the Will after signing in their safe custody and provide you with copies.

Even if you take the original Will the lawyer will keep properly certified copies of the original Will. If you subsequently lose the original Will your family can ask the court to look at the copy of the Will and allow the wishes in that Will to stand.

If there are no copies the family is put to the expensive task of applying to the probate court for a grant of administration which is a more lengthy and costly method of dealing with an estate than the usual grant of probate.

Your hand-written Will is not signed correctly

There are very strict requirements for the signing and witnessing of Wills, if your Will is not signed correctly or is not witnessed properly it may be invalid.

If your Will does not deal with all of the assets and liabilities that you leave when you die your Will may be ineffective in dealing with those assets.

Once your Will is made even writing on it later or making any changes will invalidate that Will and may render it ineffective, either partly or fully, in dealing with your assets.

You own a business

It is likely that the business will continue to run after you die. You will need a validly appointed executor to run the business until it is either sold or dissolved. You can achieve this in a valid Will.

Consider that the business may have ongoing expenses such as rent and staff costs that still have to be paid and may cause the family hardship until the business can be liquidated if there is no one validly appointed to run the business.

You and your partner are not married

When you purchased the property together it was bought in equal (or unequal) shares as you both have children from a previous relationship.

Again the property may not get transferred to either your de facto partner or your children as a matter of course. If you do not have a valid Will your property cannot be dealt with in a simple and cost-effective way.

Previously made Wills are not automatically revoked when you make a new Will

If you have a Will that you made when you were younger, perhaps leaving all of your estate to your parents, and then move residence and commence a relationship and have children.

If your new Will is invalid your estate may go to your parents not to your new family as you intended and if it does it will be a costly and longer process.

You are married but hold property solely in your name

You may have bought the property when you were single or owned the property from a previous marriage or inherited it from your parents.

If you have no valid Will and no executor to put into effect what you have written in your Will, the property cannot be transferred until the Court appoints an administrator after delay and costs have been incurred.

 If you leave your superannuation in your DIY Will

Superannuation may form part of your estate and be dealt with in accordance with the terms of your Will, but in most cases superannuation will be paid directly to a beneficiary nominated in your superannuation policy without any reference to the terms of your Will.

Whilst you can provide in your Will that your estate be given to whoever you would like there is only a small eligible group of beneficiaries who can directly receive superannuation benefits on your death.

Superannuation funds have particular rules for releasing funds to an estate and an invalid Will makes this process more difficult to navigate.

Again the release of funds is not automatic to your family and your loved ones may suffer hardship if the release of funds is delayed.

 Lawyers are trained to write valid Wills

Your lawyer will always do these two things when drafting your Will:

• they take into account the strict law requirements for a Will to be considered valid by the state probate court; and
• they also consider your particular situation and the specific individualised elements you need included in your Will.

Your lawyer will also consider whether you need a guardian for your children, a trustee to run your business, whether an elderly relative needs to remain in your home after you are gone and a myriad of life circumstances that are particular to you.

If you or someone you know wants more information or needs help or advice in preparing a valid Will please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

What to do after a family separation and pending divorce

Do you have a friend or relative who has just separated?  If so, the information below  should help.

What is meant by  separation?

Separation in Family Law is defined as the bringing to an end of a marriage or de facto  relationship (which also includes same sex couples). There is no need or ability to  register a separation under Australian Family Law. Separation is a fact which must be  proven if it is disputed by the other party at a later time.

In the case of a divorce, the date of separation is recorded on the Application for Divorce  and is sworn or affirmed to be true and correct by the Applicant. If you cannot prove you  had separated from your spouse at least 12 months before you file your Application for  Divorce, the Court will not grant your divorce.
Therefore, it is a good idea to confirm the separation in writing, even if this is via text
message that can be saved, at or shortly after the time of separation. Often divorce  cases and cases for property settlement in de facto relationships can turn upon whether  or not a party can prove that separation occurred on a particular date.

What about de facto relationships?

In the case of a de facto relationship, particularly where the relationship ends on or  about the two year anniversary, whether or not a property settlement is available can  depend on whether the separation took place before or after the two year anniversary. If the de facto relationship was less than two years long the Court may have no jurisdiction  under the Family Court Act to provide a property settlement. There may be alternate  remedies available or another basis other than the two year requirement to show that a de facto relationship existed.

In addition, there is also a two year limitation period in which to commence the  Application, from the time of separation. In such cases, again, the date of separation can  be significant.

What about if you still live together?

Separation can take place even though the parties live under the one roof and it can  also be a gradual process. In these cases, the Court will need to examine a number of  factors to determine when and if a separation has taken place.

Those factors can include whether the parties:

• Slept in separate rooms or together after the alleged date of separation;
• Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
• Separated their financial affairs to any extent after the date of separation;
• Lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single
  person, as opposed to a person in a relationship;
• Continued to be intimate after the date of alleged separation; and
• Made it publicly known (such as by telling friends and family), that they had separated.

Ten things to consider if a person has just separated:

1. Contact your bank or financial institution in writing (by fax or email with your signature appearing) to stop joint funds being removed or liabilities increased.
2. If you have a Power of Attorney, ensure it is revoked, and have a new one drafted.
3. Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
4. Photocopy all of your and your ex’s financial documents and put them in a secure location (this should not be your home or motor vehicle).
5. Look at your Will and consider if it is still what is appropriate and if you do not have a Will have one drafted.
6. If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
7. Do title searches on your properties. If your home is not in your name or is in joint names ensure you place caveats over the properties. If your property is held as a joint tenant, ensure you sever the joint tenancy.
8. If there has been family violence in the relationship you may need to seek a Restraining Order.
9. Start a diary which keeps track of time your partner has with the children and any adverse behaviour he/she displays.
10. Seek advice from an experienced Family Lawyer.

If you need more information, check our section Family Law or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on
(07) 3281 6644 or email mail@powerlegal.com.au