With a growing number of informal Wills being contested in Court, readers should be aware of the significant costs that can come with informal Wills.
The cost of informal Wills are not just financial, it can also be very unpleasant for people to air their dirty linen in Court with the judgment of the case usually reported and some details are released, whether to the media or for the benefit of other lawyers, which means that personal details may become public information.
It is important to remember that informal Wills can add complexity to already complex matters, such as in a case when a witnessed handwritten note was written to his mother leaving her his two Australian bank accounts, the Court held that this did not meet the formal requirements to be a Will in Victoria.
While the Court of Appeal in Victoria eventually found that the mother was the beneficiary, not the man’s estranged wife and son, the judgment process included factoring where the deceased lived, where the assets were located and what Chinese law applied. This case highlights the importance of ensuring that if a person has assets in other jurisdictions, as well as in Australia, they should have an Australian Will to deal with their Australian assets and a foreign Will in that other jurisdiction that deals with the foreign assets which does not accidentally revoke or conflict with their Australian Will.
Without such Wills in each jurisdiction, there may be highly complex issues to resolve, such as which law applies to the assets and how that law will operate. These issues will no doubt delay the administration of the estate for a while and add unnecessary expenses to the estate which will only diminish the amount disbursed to the beneficiaries.
Typing up notes on the computer or even leaving a text is an expensive way of writing a Will, given the Court fees will cost more than the price of having a Will drawn up properly.
Even DIY Will Kits that can be purchased, can be tricky to navigate and often result in a Court hearing to determine whether the document is acceptable. The Court will consider a number of factors in considering whether the Will maker intended for the document to be a Will. This involves issues such as whether the person had testamentary capacity when he or she wrote the document, whether they intended the document to be their Will and whether it fulfils at least some of the requirements of a Will as being a document, for instance, whether the person signed it and whether it is dated. Another issue is that the Court will look at whether the person had previously drawn up a Will, which would suggest that they knew the proper process and what was required.
For more information, speak to Stephen Rockliff at Rockliffs Lawyers.