Informal Wills - Why it's Important a Will is Properly Prepared

Thursday June 13, 2013

Informal Wills - Why it's Important a Will is Properly Prepared

It is not possible to contemplate every outcome in drafting a will or preparing a succession plan. However, it is important to ensure that the will deals with circumstances where a potential beneficiary predeceases the testator, or where property the subject of a gift is no longer in existence.

Other important elements (including superannuation and control of family trusts) may not be referred to or determined by the will, but must always be considered. If a person wishes to leave a gift of personal property, or of cash, they will need to include this gift in the will. It is not a requirement for a testator to identify recipients for all personal property, however particular family pieces of art, antiques or jewellery should be included in the will. It is important to note that a ‘letter of wishes’ left by a testator that includes items of personal property is not binding on the executors of the estate unless it is intended that such letter is to be a testamentary document. If such letters demonstrate an intention and do not satisfy the formal requirements of a testamentary document, they can cause unnecessary costs in the administration of the estate.

The growth of will kits in newsagents and their incorrect drafting has compounded the cost to estates and highlighted the importance of ensuring a will is properly prepared.

In a society with an ever increasing reliance on technology, the case of Mahlo v Hehir 2011 QSC 243 highlights the risk of wills being deemed invalid if they are not properly executed. This case involved a document that was typed on a home computer in the form of a will two weeks prior to the deceased’s death. The question which was to be considered in this case was whether an electronic file was a document which the deceased intended to form her last will and testament. The judge was not satisfied that the deceased intended that the electronic file should constitute the deceased’s last will and said that the deceased knew that in making a new will, she had to do more than type or modify a document on her computer. The judge was satisfied that the deceased understood that she had to sign the document to make it an enforceable will.

Cases such as Mahlo v Hehir have taught us to give due consideration to the enforceability of testamentary intentions. Additionally, your intentions will change over time as a result of changes in family circumstances or assets and structures. For this reason, it is also important to revisit the wills on a regular basis to ensure that they remain current and accurately reflect your wishes.