The ‘Curse’ of the Homemade Will

Getting your Estate Planning in order is vital if you wish to be certain that –

• your wishes will be carried out in the event of your demise,
• that you and your affairs are protected and managed as you require in the event of your incapacity (an oft overlooked matter), and arguably most importantly…
• that your family aren’t left with a costly, and often relationship straining, mess to deal with.

But we have recently been reminded of a case that highlights the risks of attempting to do your Estate Planning on the cheap and without sound advice.

In Rogers v Rogers Young [2016] WASC 208, the Court made it clear it’s view of homemade Wills.

Master Sanderson noted:

“On numerous occasions when dealing with so-called homemade Wills, I have observed they are a curse.…”

The comment came after examining a Will made with a “Will-kit”, which are generally purchased from Post Offices and Newsagencies and completed by the Will-maker themselves without appropriate advice.

You see the Will-maker loved her daughter and intended to leave all of her wealth to her.

However she passed away while her daughter was still a child (not yet 18).  So this means the daughters inheritance would be held in trust.

In that case, the Will-maker intended for her daughter to only receive her inheritance at age 25,  However, by virtue of the informality of the Will and unclear wording, things weren’t certain, and the daughter was forced to ask the courts how to deal with the matter.

Master Sanderson noted further:

“The disposition effected by the Will is not complicated and no doubt the testator had clearly in mind what she intended to achieve.

But the way the Will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation.

If the Will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”

Brett Davies, of Legal Consolidated, who we work closely with when assisting our Clients with their Estate Planning, has noted that “the penny dreadful Will-kit cost the daughter $200,000: $100,000 to attack a Will and $100,000 to defend”.

“On numerous occasions when dealing with so-called homemade Wills, I have observed they are a curse.…”

And those costs are all paid by the Estate, meaning they ultimately come out of what the daughter would have otherwise inherited.

So the daughter lost out substantially, and one can’t help but think the cost and frustration could all have been avoided had her Mother invested just a little bit into ensuring her Estate Plans were implemented correctly.

At CapitalQ we can help implement sound, comprehensive Estate Planning for our Clients while keeping costs under control.

And while a solicitor will always be engaged as part of the process, our knowledge of our Clients’ affairs, our ability to bring cutting edge tax planning into the process, and our commercial approach, gives you the opportunity to achieve the best possible outcome.

If it has been sometime since you considered your Estate Plans, or in fact you have never actually done so, please get in touch with your CapitalQ Client Manager and we will help you address this most important remaining piece in your financial success puzzle.

P.S. And remember, having a Will, does not an effective Estate Plan make.  There is so much more to consider, especially for our business Clients who have Companies, Trusts, Partnerships and Self-Managed Super Funds within their financial structure.