Drafting a Will isn't child's play

Wills and Estates: 23 March 2019

Drafting a will is child's play, isn't it? The answer is yes if you don't live beyond that week and as long as you had testamentary capacity at the relevant time. While we hope you live a long time after drafting your will, doing so makes the situation complicated as there are many pitfalls awaiting the unwary.

Do you leave specific legacies so you know exactly what each person will be getting, in dollar values or by reference to specific items? Alternatively, should the will be drafted with scope for discretion, possibly including a testamentary trust?

Whatever decisions you make, you will need advice to make sure that things happen the way you intend. Achieving that is complex as it requires you to understand the possibilities which may arise in the future as well as taking into account the relevant legislation.

Simply knowing who you wish to leave your estate to is not enough. Do you know whether the items you refer to will be available for your beneficiaries? Shares can be bought back by companies, bank accounts can be closed, cars can become dilapidated, property prices fluctuate and we all know that the global financial crisis certainly affected share values. After all that, there is your superannuation. You may not be aware that superannuation is not part of your deceased estate but must be dealt with separately.

Once you have navigated the practicalities of drafting a will, there is the legislation and there are court cases which help lawyers interpret that legislation. Gifts which no longer exist can cause havoc with your intentions as your most valued beneficiary could lose priority to, say, your favourite charity. Did you know that there are rules identifying who is paid first and in what amounts? Did you know that the legacies may not be given in the order you expect?

If it all sounds too complicated for you to deal with, then you understand why it is essential to choose the right lawyers who understand your needs. Not only that, but you need lawyers to guide you through the process and take detailed notes of your wishes, which can also be useful in the event your will is challenged.

Simplicity is often the key to successful will drafting, but understanding what to put in and what to leave out requires expertise and our ability to listen to your needs. If you don't have a will or have not prepared one with us, it is time to review it. If you have worked together with us to prepare your will, then it might be time for a quick chat to see if your current circumstances require an update.

At Aitken Partners, we look forward to helping you achieve your goals in life and choosing your legacy to accord with your wishes.