If a person wishes their property to be divided in a particular way upon death, then there is no other way to ensure this than by making a will. If no will is made division of a deceased’s property is made according to the scheme laid down in Part I Division 6 of the Administration and Probate Act 1958 (Vic) (“A&P Act”). This division may be directly against the wishes of the will maker. To avoid this possibility, a will must be made.
People can buy Will Kits (Do-it-yourself kits) to save money on legal fees. How wrong they sometimes are – as the Supreme Court decision below demonstrates.
Application of Russell-Smith; Estate of Plumwood [2010] NSWSC 257 (8 April 2010)
Below are extracts from the judgment
13 Dr Plumwood arranged for two people to sign the document as attesting witnesses. They did not sign the document together. One of the witnesses, Ms Job, had little recollection of the occasion. The document is undated. Neither witness was able to state when they placed their signatures on the document. The other witness, Mr Perkins deposed that it occurred sometime before June 2006 and might have been in 2005. He recalled visiting Dr Plumwood at the property. No-one else was present. Dr Plumwood had purchased the draft will from a newsagent. He advised her to consider seeking professional legal assistance but she expressed a desire to save money by using a do-it-yourself type of will. Mr Perkins told Dr Plumwood that he was not happy with her decision to leave the property to the Bush Heritage organisation as he thought that the most enduring protection for the property would be provided by its being given to the National Parks and Wildlife Service.
And later:
21 It is a great pity that in a misguided effort to save costs, Dr Plumwood should have put the estate to the delay and expense of obtaining evidence to throw light on which of either of the later documents she intended to constitute her will. It is also unfortunate that the author of the will kit should have instructed potential testators to execute and have attested what was intended only to be a draft. If the kit is still available for purchase I trust that the proprietor of the kit will correct the text.
The legislation governing this area of law is the Wills Act 1958 and 1997 (Vic) (“WA 1997”). The WA 1997 will affect a will made after 20 July 1998 and in many cases the will of a person who died after that date leaving a will whenever executed. The WA 1958 now repealed legislation, may still affect wills made prior to 20 July 1998. If there is any doubt as to which statute applies to a particular will, legal advice should be obtained.
A will lets you say how you want your property dealt with when you die. Making a valid Will is very important. It is the only way to ensure your estate is passed on in the way you would have wanted.
As lawyers we never approve of cheap will kits. Let’s say even if it is drafted correctly it may not be properly executed, making it invalid. After you die, you won’t be around to take care of any “loose strings” or things that aren’t properly dealt with in your will.
The cost of doing a proper will is not that much and it will be money well spent considering the outcome if it is made invalid when you are not around.
Around 1/3 who draw up a will either misplace it or let it get damaged, or do not inform their executors where the original will is kept. We offer all our clients a free safe custody service for the original will. Supreme Court only accepts original and valid wills.
Via a will you can nominate who gets what for example assets, such as houses, cars, money and shares, Rights and powers, such as the right to appoint the trustee of a family trust Specific belongings such as a painting, wedding rings, heritage goods, furniture, books etc.
Making a valid legal will is not a matter to be taken lightly.
At Dlegal we advise and assist in the preparation of your legal will. We also assist in applications for grant of Probate and other testamentary matters.
You can down load a free copy of “Smarter Wills Guide and Benefits“