Writing a Will – 5 Reasons to engage a Wills and Estates Lawyer

Writing a Will is vital. It is estimated that almost 50% of Australians die without a Will. Which means you are leaving it up to the Courts to decide how your Estate is distributed. Do you want to leave it up to the courts to distribute your Estate?

Here are five reasons why we believe you should engage a Lawyer to prepare your Will for you.

#5 A lawyer can make sure your Will conforms to legal requirements.

You can always go on the internet and research the legal requirements for Wills for creating a Will yourself. However, you cannot be certain if what you write yourself conforms to legal requirements.

A lawyer can clarify if what you intend to do with your properties is allowed by law.

For example – Are you allowed to give one child a bigger share than the others? If your Will does leave one child more, will your other children succeed if they contest your will?

What if you signed your Will in the presence of your witnesses but the witnesses was replying to a text message on their phone at the exact time you were signing it and is not paying attention – does this meet the requirements of the law? How would you know if it does?

You need a lawyer to make sure that your Will, its contents and the manner in which it is executed all conform to legal requirements. It can save your loved ones a lot of unnecessary stress dealing with someone contesting a will and the like following your death.

#4 A lawyer can help you accurately list down properties you can dispose of in your Will.

Not all property you own can be included in your Will.

For instance, if you are a co-owner of property, common sense dictates that you cannot dispose of the entire property as there are two of you who own it jointly. So, the question is, can you at least dispose of your share? Can you include your half of the property as one of the items of property in your will? That depends on a number of factors – and this is why you should seek legal advice.

What if you are a beneficiary of a Trust? Can you include the right to receive the proceeds of the Trust as part of your properties that can be disposed of in your Will?

What about insurance policies? Can you distribute the proceeds of an insurance policy in a will? That depends, doesn’t it? It depends on whether your insurance policy has a designated beneficiary and if the designation of the beneficiary is irrevocable. How would you know if and when you can dispose of the proceeds from an insurance policy in your Will?

You will want the advice of an experienced and knowledgeable lawyer. These questions are complex and can only be answered by a lawyer who is intimate with all the details of other transactions.

#3 A lawyer can help ensure that your Will is complete.

Have you forgotten anyone significant in your life to whom you want to leave something upon your death? Are you required to include all your legal heirs in your will? Are you required to give equal shares to all your heirs so that they won’t challenge your will?

Can you exclude from your will a child who has accused you of abuse or neglect? Can you exclude your step children from your will?

Do you have minor children? Do you need to provide for their guardianship? Can you entrust your executor with the legal custody of your minor children? Can you give them an inheritance on condition that they qualify for admission to University? Can you give them an inheritance on condition that they get married first?

Have you made provision for your funeral arrangements and set aside property to be used exclusively to help defray the expenses for your funeral? Have you thought about donating your organs?

Have you appointed an executor of your Will? What if the executor you have named in your Will repudiates his or her nomination? What if the executor you chose and nominated in your will is incapacitated — who will be the executor? Have you made arrangements for the payment of your executor?

Can you release a debt in a Will? Can you assign to an heir the legal right to sue another person to get property belonging to you that has been taken by someone else? Can you bequeath on an heir the right to collect on an indebtedness?

Can you make special bequests? Can you make special gifts of specific pieces of property like a diamond ring to your best friend? Can you leave your pet cat a sum of money to pay for veterinary expenses? Can you give properties to heirs on a condition that they take care of your cat?

Obviously, these questions can only be answered by a lawyer. Only a lawyer can help you make decisions about property dispositions that will be legally enforceable even when there is a challenge to your will. You want your will to be tight and loophole-free.

#2 A lawyer can give you the advice to reduce the risk of challenges to your will.

Those people closest to you can actually contest a Will if they feel that the distribution of your properties in your Will is unfair to them. How can you make sure that they do not have serious legal grounds for contesting a will?

If you’ve been divorced several times, are you required to leave something in your will for all your ex-wives? What if you’ve had several partners, are you required to leave something for each of them?

Can you say in your Will that the heir that challenges the Will, will forfeit his or her share?

The intricacies of your past relationships with wives and partners play a role in determining whether your will shall be vulnerable to challenge. And if one of your heirs succeeds in challenging a will, your testamentary dispositions will be modified by the court.

For these reasons, you need the advice of a lawyer specialising in Wills and Estate Planning.

#1 A lawyer can help you make sure that your Will is valid.

Last but not the least, and in fact, this is the most significant reason why you need to have a lawyer draw up your Will for you. A lawyer can help you prove that your Will was drawn up by you while you were of sound mind.

Testators must be of sound mind when determining the manner by which their properties will be distributed upon death.

Testators know who their heirs are, the nature of their relationship they have with them and the reason they are included in the Will.

Testators know what properties they own, where there are, how much they own, and the manner they want those properties distributed.

But how will you word and phrase your Will so that you can show that you do possess a “sound mind” at the time you executed the will?

What if, after you execute your Will, you suffer from a disease or sustain an injury that diminishes your intellectual capacity or alters your mental state. How can this affect the validity of your Will? Does it affect the validity of your Will at all?

All these questions and concerns can be answered by your lawyer.

Often, a testator will think that engaging an experienced Will Lawyer to prepare a Will is simply too much expense. Consider the alternative: if your Will does not conform to legal requirements and if your Will does not show that you were of sound of mind at the time of the execution of your Will, your Will may be nullified in its entirety. If your Will disregards some of your legal heirs and the courts decide that they are entitled to a fair share of your properties, your Will may be open to modification.

If your Will is found to be invalid for having failed to conform to the requirements of the law, then, your Estate will be distributed by the courts and not in accordance with your wishes. To prevent the possibility of your Will being invalidated and your estate passing into intestacy, we firmly advise to consult a lawyer about preparing your Will.

At Perth Law Firm Macdonald Rudder we have been helping our clients with Estate Planning and Will preparation since 1987. Get in touch today to discuss your Will and Estate Planning with one of our friendly lawyers.