Will this do? Informal wills have expensive consequences

By Lucy Dean

April 12 2018
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With a growing number of informal wills being contested in court, Aussies should be aware of the significant costs that come with this, an estate planner has said.

The costs of informal wills also aren’t limited to financial, warned wills and estates accredited specialist at Australian Unity Trustees Anna Hacker.

“It can be very unpleasant for people to have to air their dirty laundry in court – and it’s not just in the courtroom,” Ms Hacker said.

“The judgment of the case is usually reported and the details are released, whether in the media or for the benefit of other lawyers, which means personal details can become public information.”

It’s important to remember that informal wills can add complexity to already complex matters, such as when the deceased was a foreign resident, Townsends Business & Corporate Lawyers’ Elizabeth Wang added.

The recent Victorian case of Re Tang is an example of this. With assets in both Australia and China, and an un-witnessed hand written note written to his mother leaving her his two Australian bank accounts, the document didn’t meet the formal requirements to be a will in Victoria.

While the Appeal Court eventually found that the mother was the beneficiary, not the man’s estranged wife and son, the judgment process included factoring where the deceased lived, where the assets were located and what Chinese law argued.

“The case highlights the importance of ensuring that if a person has assets in other jurisdictions as well as Australia they should have an Australian will to deal with their Australian assets and a foreign will in that other jurisdiction that deals with the foreign assets and does not accidentally revoke or conflict with their Australian will,” Ms Wang told Nest Egg.

“Without such wills there can be highly complex issues to resolve like which law applies to the assets and how that law would operate. Those issues will delay the administration of the estate for a long time and add unnecessarily to estate expenses.”

Typing up notes on the computer or even leaving a text is an expensive way of writing a will, Ms Hacker said, noting that any court fees will cost more than the price of having a will properly drawn up.

Even DIY will kits that can be purchased can be tricky to navigate and often result in a court hearing to determine whether the document is acceptable.

“The court considers a number of factors in considering whether the willmaker intended for the document to be a will,” Ms Hacker said.

“This looks at issues such as whether the person had testamentary capacity when they wrote the document, whether they intended that document to be their will, and whether it fulfils at least some of the requirements of a will such as being a document, for instance whether the person signed it and whether it is dated.

“Another area that the court looks as is whether the person had previously drawn up a will, which would suggest that they knew the proper process and what was required.”

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