“Death is not the end. There remains the litigation over the estate.” (Ambrose Bierce)Your will (“Last Will and Testament”) will always be the keystone of your estate planning, and a recent High Court decision sounds yet another warning to beware the “do your own will” concept. By not having his will drawn by a professional, a father inadvertently caused one of his children to be disqualified from inheriting her intended share, whilst her husband was disqualified from being appointed as executor.
Who is disqualified from inheriting?
Our law, in the form of the Wills Act, provides that no one (or their spouse) can receive “any benefit” under a will if –- They signed it as a witness (unless it was also witnessed by two other competent people not receiving any benefit), or
- They signed it for the testator (even though in their presence and at their direction), or
- They wrote out the will or any part of it in their own handwriting.
The facts of the family fight
- In poor health and realising he needed a will, the testator had asked a friend to help him draw one. The friend produced a typed will, in terms of which each of the testator’s three children (from two different marriages) received one third of his estate. In addition a son-in-law was appointed as executor.
- The will was, said the Court, “slightly unusual” in that it included a narrative on the father’s difficulties with his third wife, but the real problem (as it turned out) came from the fact that annexed to it was a four-page typed schedule of 69 assets with spaces against each of them for insertion of the name of the child to receive that asset. Critically, those names were filled in by hand by one of the daughters – on, she said, her father’s instructions.
- The will and schedule were properly signed and witnessed, and the father died five days later.
- As is regrettably all too common when a deceased leaves behind children from more than one marriage, a fight developed between them, with a claim that the schedule of assets did not reflect the father’s wishes through either fraud or undue influence.
- The end result (much bitter dispute over facts later) the Court held that the daughter who had completed the names on the schedule by hand was disqualified from inheriting any more than her share on intestacy, and her husband was disqualified from being appointed as executor.
The bottom line
All that dispute, uncertainty and legal cost could have been avoided had the father called in a competent professional to draw his will for him (preferably long before his illness struck). Don’t make the same mistake! Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.© LawDotNews
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