Brett Davies is a guest contributor to The Money Guide. Civic Legal (incorporating Brett Davies Lawyers) has helped clients across Australia for over 16 years. From managing your personal Estate Planning and Business Planning to tackling the ATO in the High Court, Brett Davies Lawyers offers clear and straight forward advice. Civic Legal is a private tax law firm. We only take instructions via your own Lawyer, Accountant or Adviser.

4 responses to “Writing your own Will is dangerous”

  1. pmo

    What a load of self-serving rubbish! Writing your own will for a simple situation is totally trivial, as long as you follow the basic rules regarding witnesses etc. No legal jargon is needed and a solicitor is NOT required. You just write it in plain English. The Probate Court does NOT see it otherwise. They understand English.

    Certainly some situations may require consultation with a solicitor but as for claiming that things like superannuation complicate the issue, what a load of garbage.

    If you simply say: “I leave all my possessions to my husband Bill Smith”, have it correctly witnessed, signed and dated and assign an executor etc, it is totally unambiguous, totally legal and works perfectly no matter how complicated your finances or family is. Nothing a solicitor could add to the will would make it any more legal, valid or enforceable.

    You could spend thousands of dollars in a complex situation having a 50-page will drawn up in the best legal jargon and with seemingly every possible loophole covered, and it is not worth the paper it is written on if someone challenges it in court.

    What you have to understand is that your will is completely meaningless when it comes to a court challenge. Whether you write exactly what I said above, or write it in 50 pages of complex rules, the court can and regularly does simply ignore everything you have said and distribute your assets the way it thinks is “fair”.

    Spend your money on a solicitor if you like, but it is often a complete waste of time and money. In fact the more complex your situation, the more likely it is that someone will challenge the will, and hence the less reason there is to try to make it watertight.

    If you desperately want your assets divided up a certain way, DO NOT try do do it using a will. The courts can simply ignore it. For possessions, draw up a simple dated and signed contract either gifting or selling (for $1) the things to the desired people before you die, with a clause stating that you have the right to use the object until you die. A will cannot override a contract, even if challenged in court.

    If you leave your washing machine to your wife in the will for example but it is under finance, the finance company gets their share first regardless of what your will says and that cannot be challenged. Same applies if you have already gifted or sold it to someone else.

    It is more complicated with money and real estate, but again if you think your will will be challenged, there is little you can do about it. (Lang Hancock supposedly said if anyone challenged his will they got nothing. Look at how long his daughter and wife have been fighting over it!)

  2. pmo

    The only thing I would add to that in relation to Superannuation is to put in place a binding beneficiary nomination, forcing the super fund to pay out the balance to the nominated person.

  3. pmo

    Of course there are some wills, both self-written as well as solicitor-written, that end up with problems, but they represent probably 0.01% of all wills.

    99.99% of wills get stamped, probate gets issued, and the executor distributes the assets as per the will, regardless of whether it was drawn up by themselves or by a solicitor.

    As for testamentary trusts, why should someone who goes bankrupt owing me money be able to hide potentially huge inherited assets behind a trust so as to deny me the right to recover what he owes me?

  4. Will

    In the UK, it looks like will writing is about to become a restricted activtity. It will be interesting to see if this significantly improves the quality of wills available.

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