WHAT ARE COMMON WILL MISTAKES AND HOW CAN YOU AVOID THEM?

It’s easy to think that there isn’t much work put into preparing a Will and that it’s as easy as writing down your wishes on a piece of paper and just signing away in front of just anyone who agrees to be a witness.

Whilst a Will does contain your wishes, it’s an extremely important document. If a Will is not prepared correctly, the clauses are not written correctly or the Will is not signed correctly, you may risk your Will being invalid upon your death or your wishes being misinterpreted.

What are some common mistakes with Will making?

Having a Will that is incorrectly signed or witnessed can cause a future issue or delay for yourexecutor when applying for a Grant of Probate. In order for your Will to be legally binding, your Willmust be witnessed by two people who are present at the time of signing, over the age of 18 years and not named in the Will or married to someone named in the Will.

When a big life event changes your circumstance, it is very important to update your Will to reflect the changes. If you were to gain new children, grandchildren, or become married or divorced you should update your Will. For example, if you were to marry after your Will was made, this would revoke any previous Wills and if you were to divorce, your Will would still be valid but would be carried out as if your spouse had predeceased you.

If you choose to exclude an estranged family member from your Will and you do not disclose a reason as to why, the estranged family member might try and say that they are entitled to part of the estate and likely succeed at making a claim. If you want to avoid a claim, having a signed letter written in your hand writing explaining the reason the estranged family member has been excluded is important. The hand written letter will be used as evidence that they were not included into the Will for a reason, and it is your wish that your Will is carried out this way. However, if this is not done correctly, you may risk the estranged family member receiving part of your estate.

Whilst preparing a DIY Will may save you legal costs while you are alive, there is a higher chance that your Will won’t be validated by the Supreme Court of Victoria, thus incurring far greater legal costs for the estate and also unnecessary stress for your executor (to deal with any Supreme Court of Victoria Requisition to clarify any issue with the way the Will was made). There is also a greater risk that your wishes won’t be clear or understood the way you wished them to be. If your DIY Will is unclear on what your wishes are. For instance, if you wish for your residuary to be distributed equally between your children, by using the word children, are you referring to stepchildren too? Penning down your intent very clearly in a legal language is essential.

By engaging a legal practitioner to assist in preparing your Will and by obtaining the necessary advice, those common mistakes that can be made are avoided and your wishes are carried out the way you intended.

If you require assistance in preparing a Will for yourself or for you and your spouse, please don’t hesitate to contact our office on (03) 9707 1155 or at admin@wslegal.com.au. https://wslegal.com.au/fact-sheet/wills-and-estates/common-will-mistakes-and-how-to-avoid-them