Q. What’s the difference between a good will and a bad will?

A. A good will obviously needs to give effect to a person’s intentions. It requires a detailed consideration of the testator’s family relationships, property and associated entities such as trusts, companies or business partnerships.

Additionally, it should give clear instructions regarding distributions to beneficiaries whilst minimising the possibility of litigation regarding the will or the deceased estate. The bad will doesn’t appropriately deal with those issues and so results in uncertainty or litigation that is oftentimes avoidable.

Q. Why shouldn’t I purchase a will kit from the post office and create one myself?

A. There are two aspects to this. Firstly, without professional advice, all too often the will is unclear in the gifts to be made or does not deal with all assets of the deceased. Secondly, most self-made wills do not consider and comprehend the possibility of claims for further provision.

Each of these issues may result in your estate being held up in litigation for years, with significant (and generally avoidable) legal costs reducing your estate and the gifts to your beneficiaries.

Q. What are some of the grounds that you encounter for people trying to contest a will?

A. The most common issue on which clients seek advice is their prospects of claiming a greater share of the estate when inadequate provision has been made for them in the will of a parent. Oftentimes this is when a child has been completely left out of a parent’s will, but sometimes it extends to seeking more than an equal share to compensate for the different circumstances of each beneficiary.

Another common aspect of estate litigation is challenging the validity of a will on the basis that the testator lacks mental capacity, which may result in the entire will being invalid!

Q. Once a person has a will, their estate planning is complete, right?

A. Unfortunately, no. There are so many different aspects to planning for what happens after you pass away. Your will deals with payment of your debts when you pass away, and (more importantly) directs how your assets are to be distributed. But there is much more to consider than just these elements.

Comprehensive estate planning should include, for example: a full consideration of all of your assets, liabilities and financial resources; examining and possibly directing the payment and use of proceeds of your superannuation fund and any life insurance policies; and considering whether joint property will form part of your estate and whether your interest in joint property can be given to another person under your will.

Another thing to consider, especially as you get older, is ensuring that you are prepared for the unfortunate situation where you may not be able to look after yourself or your finances.

By preparing an Enduring Power of Attorney, you can ensure that if you are no longer able to look after your finances, your affairs will be taken care of by an attorney (generally a trusted relative or friend) who can manage your finances on your behalf and for your benefit.

Q. What is the role of an executor of a will? If I’ve been appointed as an executor, what should I do?

A. The simplest explanation of a will, is that it is an instruction sheet for what to do when you pass away, and the executor is the person you appoint to carry out your instructions. It is not possible to list all of the duties and obligations of an executor in a brief manner, but the following are some of the more important ones.

If you are appointed as executor, it is your most importantly duty to administer the last will according to law. This means that you cannot pick and choose what gifts to give effect to, nor can you choose which will you want to follow. You must follow the instructions contained in the last valid will.

Some of the executor’s duties are to:

• make appropriate funeral arrangements (including disposal of the remains, in accordance with the wishes expressed by the deceased),
• pay all debts owed by the deceased person (with payment of the funeral and burial/cremation expenses taking first priority),
• gather and obtain possession or ownership of all assets of the deceased (known as “getting in” the estate property), and
• after payment of all debts of the deceased, distribute the remaining assets of the deceased as specified in the will.

Given the importance of administering a will according to law, if you have any questions, then you really should ensure you get appropriate legal advice so that you are not ultimately liable for any errors or omissions in the estate administration.

How We Can Help

Our expert wills and estate planning lawyers are experts across the range of wills and estates.

Our expert lawyers will work comprehensively to ensure all your estate planning needs have been addressed, answer any questions you have so you understand the legalities and importance of the estate planning documentation, and provide superior support from a dedicated lawyer, from the first phone call to finalising your estate planning.

Contact Us

Get the best representation. Contact Ryan Murdoch O’Regan Lawyers on 1800 999 529, email mail@rmold.newwebsite.live, or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.