Many people are of the view that a will is the type of document that can be completed by filling in a few blanks on a stationer’s form or that they are a five minute drafting job. I have received many calls from individuals who advise they would like a “simple” will. Unfortunately, many litigation cases, not to mention family feuds, exist because someone assumed will making is always a simple exercise. For example, there is actual case law and situations (some passing through my office) where:
- Wills have been unintentionally revoked because the testator married after the date of the will, disinheriting intended beneficiaries
- Spouses and other dependants have successfully claimed a greater portion of an estate than the will instructed
- Executors have had to search high and low to determine estate assets which could be located anywhere in the world, resulting in much frustration
- Wills have had to be interpreted by the Court because they were worded unclearly or had contradictions
- Estate trustees who have a long history of feuding were appointed by will to work together, resulting in applications to have them removed from this role
- Minors inherited enormous sums of money which was spent within a short time frame
- Special needs beneficiaries were left with little resources because their parent(s) assumed the other children in the family would care for them
- Family members with little administrative skill, business sense or social skills were appointed as estate trustees, resulting in applications to court to have them removed
- Friends or family who provided care and support to loved ones while they were alive were very disappointed when they were left out of the will
- Children born from extramarital affairs stepped forward to claim a share of the deceased’s estate
- The deceased assumed that their children from first and subsequent marriages will get along after they die and “do the right thing”
and the list goes on….as you can see, litigation can quickly eat up estate assets, destroy family relationships and destroy the deceased’s estate plan!
The simplicity of the process really depends upon each person’s fact scenario. Thus, a thorough fact finding process should proceed the preparation and execution of estate planning documents, including a will. Should you retain a lawyer to assist you with this, their review and discussion with you should include your:
- Family members, dynamics and history
- Assets and debts, including those in other jurisdictions
- Business assets, debts and agreements
- Beneficiaries, including substitutes and whether they will be able to manage the assets you leave for them
- Specials needs beneficiaries and adequacy of resources for them
- Chosen Estate Trustees, their personality and skill set
- Wishes, intentions and values
This list is not exhaustive. In essence, a professional estate planning experience should include a sound dialogue between the lawyer whose practice focus is wills and estates, and the client. The lawyer should go beyond the questionnaire answers in order to give tailored legal advice. They will be looking for red flags in your personal situation which, when spotted, can be addressed to avoid future problems, including estate litigation.
The lawyer will also be able to detect the need to involve other professionals in the planning process and connect you with those in their network. For example, it is not uncommon to need the advice and services of a family lawyer (for example, the will maker may be going through a divorce), a tax specialist or accountant, financial advisor, insurance specialist, real estate agent or funeral pre-planner.
Since your personal situation is not like everyone else’s in the world, your estate plan should not be either.
Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.