LAMMaking a valid Will is one of the most important things a person can do to protect their loved ones. Over time a Will needs to be reviewed and updated so that it properly reflects life changing events. It is imperative that a Willmaker takes proper professional advice to ensure the Will reflects their wishes and is in conformity with the law. The pitfalls of not doing so are highlighted in a recent Western Australia case.

The Willmaker died leaving a ‘will kit’.  The Willmaker was survived by a daughter.  The Will left the estate to the daughter who was still a minor at the time of her mother’s death with conflicting trust provisions.

The Executor of the Will applied to the Court for direction as to whether the daughter should receive her interest in the estate upon reaching the age of 18 or 25 years. The Court took into account evidence that the deceased clearly intended that her daughter should not receive the estate until she turned the age of 25 years.

 The Court noted “On numerous occasions when dealing with so called homemade Wills, I have observed they are a curse. Homemade Wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. 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”.

The Court determined that the Will provided for the whole of the deceased’s estate going to the daughter and being postponed only until she reached 18 years of age. Upon attaining 18 years of age, the daughter was entitled to the estate and the trust was at an end.

The inevitable result was an expensive court case over a Will that ultimately failed to carry out the Willmaker’s wishes. All of this could have been avoided if the Willmaker had consulted a lawyer and signed off on a Will which reflected her wishes.

At Everingham Solomons we have the expertise and experience to assist you in making a Will that is tailor made to meet your personal wishes and deals with your particular circumstances Because Helping You is Our Business.

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