Why is a simple will not enough? You may think that because you don’t own anything substantial that a simple will is enough. A recent case of an estate battle that reached the Supreme Court in the United Kingdom has highlighted the need for obtaining quality and specialist estate planning advice.
The Case of Signing the Wrong Will
Mr and Mrs Rawlings made wills before their deaths, which left everything to each other, commonplace for married couples. In the event that the other had already passed away, the entire estate was left to Mr Rawling’s stepson, Terry Marley. They made no provision for their own two sons in their wills.
Unfortunately, an error was made in that Mr and Mrs Rawlings signed each other’s wills instead of their own. This oversight wasn’t discovered until both had died.
Their sons contested the will, claiming that it was invalid, and that they should inherit the estate under intestacy (or as if they had died with no will) laws. Mr Marley, who undoubtedly had a negligence claim against the solicitor, was required by the solicitor’s insurers to bring proceedings to seek to have the will upheld as valid.
The trial judge and Court of Appeal found that there was no document which constituted a will, and that Mr and Mrs Rawlings had died intestate (or without a valid will). Accordingly, the estate would pass to all his children, despite the fact that this was clearly not what the deceased intended.
However, the Supreme Court found that the document Mr Rawlings had signed was clearly intended to be his wishes and that it satisfied the formal requirements of a will. As a result, Mr Marley received the entire estate and the two sons received nothing.
The decision of the UK Supreme Court is not binding on Australian courts, but it is an interesting case study in how even a simple will can end up in a ferocious estate battle. It also highlights the consequences of negligence on the part of the solicitor, and why you should always seek the advice of a lawyer who specialises in estate planning.
The Law and A Simple Will
In the state of Queensland, there are also laws which make provision for certain family members under a will. The people you ought to consider in your will include:
- Spouse or de facto partner
- Other dependents (in certain circumstances)
Therefore, although a will-maker may wish to exclude a child from the will for example, the law allows the excluded child to seek a share of the will. The child could very well be successful, meaning that the will-makers’s wishes are overturned.
That’s why it’s so important to seek specialist advice when writing your will, even if you consider it to be a simple will. A specialist understands the complexities of the law and can advise you what could happen if your will is contested. And as this case illustrates, it’s also important that basic errors aren’t made.
When creating your simple will, there are some steps that everyone must follow. Firstly, you must clearly state the beneficiaries in your will. When you do this, you must state what you want the beneficiaries will receive. It is always a good idea to give reasoning based on your decisions, as this can prevent future estate battles. If you have children that are not yet 18 and wish for them to receive their inheritance later in life, then you can create a trust that holds these assets for them. However, you must ensure that you have named a trustee to ensure the assets are protected.
It is also important to keep in mind that superannuation funds and life insurance are not included directly within your will, even if it’s a simple will. Therefore, you must ensure that you have contacted both organisations to ensure you have a beneficiary listed. The policy may be slightly different than you thought, therefore, you should contact the funds immediately and ensure you have set it up properly.
Before you begin naming beneficiaries, you must take into account your debt and how your estate will pay that off after you pass away. You may choose to sell your house and have the profits to pay off the loan of your car or you may make other decisions. Whatever the case, it is best you seek advice to ensure you follow the right steps. If you are unsure about estate planning or how to create your simple will, you should seek legal advice immediately. Even if you are sure, the case of the Rawlings proves that basic mistakes can be made.
After you have made your will, you should seek legal advice to ensure that you have included everything and haven’t accidentally missed an asset. You can seek legal advice from Mitchell Solicitor’s: we offer a free 10-minute phone consultation – contact us today.