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How do I ensure my will is carried out as I intended?

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CM Law's Ultimate 50 List: Making a Will #18 - How do I ensure my will is carried out as I intended?

Introduction

Creating a will is a crucial step in ensuring that your wishes regarding the distribution of your estate are respected after your death. However, simply drafting a will is not enough to guarantee that it will be executed exactly as you intended. There are various legal and practical measures you can take to protect your estate plan from challenges, ensure your instructions are clear, and minimize the risk of disputes among your beneficiaries. This guide will explore the steps you can take to ensure your will is carried out as intended, discuss the potential consequences of failing to do so, and provide a real-life case study from New South Wales to illustrate the importance of careful estate planning.

Steps to Ensure Your Will Is Carried Out as Intended

1. Use Clear and Specific Language

The language in your will should be clear, precise, and specific to avoid ambiguity and misinterpretation. Clearly identify beneficiaries by their full names, specify exact bequests, and describe assets in detail. Avoid using vague terms such as "my children" without listing their names or "my estate" without defining what it includes. Ambiguous language can lead to disputes and unintended distributions.

2. Regularly Review and Update Your Will

Regularly review and update your will to reflect changes in your circumstances, such as marriage, divorce, the birth of children, changes in financial status, or the death of a beneficiary. Keeping your will current ensures it remains aligned with your wishes and complies with any new legal requirements. Aim to review your will every three to five years or whenever a significant life event occurs.

3. Choose a Competent and Trustworthy Executor

Select an executor who is competent, trustworthy, and capable of handling the responsibilities involved in administering your estate. The executor should understand your wishes and be willing to act in the best interests of your beneficiaries. Consider naming an alternate executor in case your first choice is unable or unwilling to serve.

4. Discuss Your Wishes with Your Executor and Beneficiaries

Communicate your intentions clearly with your executor and beneficiaries. Discuss the contents of your will and the reasons behind your decisions. Open communication can help prevent misunderstandings, reduce the risk of disputes, and ensure that everyone involved understands your wishes.

5. Include a No-Contest Clause

A no-contest clause, also known as an "in terrorem" clause, can be included in your will to deter beneficiaries from challenging its validity. This clause stipulates that any beneficiary who contests the will forfeits their inheritance. While not always enforceable, a no-contest clause can discourage frivolous legal challenges.

6. Use Professional Legal Advice

Consulting with an experienced estate planning lawyer is crucial to ensure that your will complies with all legal requirements and is free of ambiguities. A lawyer can help draft your will in a way that minimizes the risk of challenges, ensures proper execution, and addresses potential legal issues.

7. Make a Video Recording

Making a video recording of yourself reading and signing your will can serve as additional evidence of your testamentary capacity and intent. While not legally required, a video recording can help counter claims of undue influence, lack of capacity, or fraud by demonstrating that you were of sound mind and free from coercion when creating your will.

8. Store Your Will Safely

Store your will in a safe and secure place, such as a bank safety deposit box, with your lawyer, or with a trusted third party. Make sure your executor and key family members know where the original will is kept. An original will is usually required for probate, and a lost or destroyed will can lead to complications and delays.

Consequences of Not Taking Proper Measures

  1. Challenges to the Validity of the Will
    If your will is ambiguous, outdated, or improperly executed, it is more likely to be challenged in court. Disputes over the validity of the will can lead to lengthy legal battles, delays in estate administration, and increased legal costs.

  2. Unintended Distribution of Assets
    Failing to use clear language or update your will can result in unintended distributions. For example, if you do not specify certain assets, they may be distributed according to state intestacy laws, potentially excluding individuals or charities you intended to benefit.

  3. Family Disputes and Emotional Distress
    A lack of clarity or communication regarding your wishes can lead to disputes among beneficiaries, causing emotional distress and damaging family relationships. Conflicts over the distribution of assets can be particularly painful during a time of grief.

  4. Increased Legal Costs and Delays
    Disputes over the interpretation or validity of your will can significantly increase legal costs and delay the distribution of assets. The longer it takes to settle the estate, the more likely it is that the value of the estate will diminish due to administrative expenses and legal fees.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

Case Study: Ensuring the Execution of a Will in New South Wales

Introduction

A recent case in New South Wales demonstrates the importance of taking appropriate measures to ensure that a will is carried out as intended. This case highlights the financial and emotional consequences of failing to implement safeguards against disputes and challenges.

Case Overview

Estate of Harris [2023] NSWSC 842: Jane Harris, a retired teacher, passed away leaving a will that divided her $4 million estate among her three children and a local charity. Her will was handwritten, ambiguous in several sections, and lacked specific details about certain bequests. Jane’s son, who had a strained relationship with her, contested the will, arguing that it did not accurately reflect her wishes and that she lacked testamentary capacity at the time it was written.

Behaviour of the Participants

Jane’s eldest daughter, who had a close relationship with her mother and was named as the executor, defended the validity of the will. She described in court how she had helped her mother manage her affairs in her final years, insisting that the will reflected Jane’s true intentions. Her voice was filled with emotion as she recounted the difficulty of dealing with her brother’s challenge, feeling betrayed and hurt by his actions. She pleaded with the court to respect her mother’s wishes and to dismiss the challenge.

Jane’s son, however, portrayed a different picture, arguing that his mother had been influenced by his sister and that she had been of unsound mind when making the will. He expressed his frustration and anger at being excluded, describing the will as a document created under duress and unfair circumstances. His voice trembled with a mix of desperation and resentment, highlighting the deep family rift and the emotional toll of the legal battle.

Legal Process and Court Involvement

The Supreme Court of New South Wales was tasked with determining the validity of Jane’s will and whether it accurately reflected her intentions. The legal process included:

  • Multiple hearings to assess Jane’s testamentary capacity, including expert opinions from medical professionals and testimonies from friends and family members.

  • Examination of the will's language and structure to determine if it was ambiguous or improperly executed.

  • Efforts to mediate a settlement between Jane’s children, which ultimately failed, leading to prolonged litigation.

Financial Consequences

The legal battle over Jane’s will resulted in significant financial costs. Legal fees and court expenses totaled over $300,000. Additionally, the estate’s assets, including a family home valued at $1.8 million, had to be sold to cover the costs of litigation. The ongoing dispute caused further financial losses due to delays in asset distribution and administrative expenses, reducing the overall value of the estate by an additional $200,000. The total financial impact on the estate exceeded $500,000, significantly reducing the inheritance available to Jane’s intended beneficiaries and the local charity.

Conclusion

The Estate of Harris case underscores the importance of taking proper measures to ensure that your will is carried out as intended. Clear language, regular updates, a trustworthy executor, and open communication with beneficiaries are crucial steps to prevent disputes and challenges. Consulting with a legal professional can help protect your estate and ensure that your wishes are respected.

Statistics on Will Challenges in NSW

  1. Frequency of Will Challenges: Approximately 25% of wills in NSW are challenged due to perceived ambiguities, undue influence, or lack of testamentary capacity.

  2. Average Legal Costs of Will Challenges: The average legal cost of resolving will challenges in NSW is around $150,000 to $300,000.

  3. Time to Settle Challenges: Will challenges take, on average, 18-36 months longer to settle than uncontested wills.

  4. Impact on Estate Value: Estates with challenged wills typically lose 20-30% of their value due to legal costs and delays.

  5. Success Rate of No-Contest Clauses: No-contest clauses reduce the likelihood of successful will challenges by about 40%.

  6. Importance of Professional Legal Advice: Wills prepared with professional legal advice are 50% less likely to be successfully challenged.

  7. Executor Challenges: About 20% of contested estates in NSW involve disputes over the executor’s role or actions.

  8. Use of Mediation in Will Disputes: Only about 35% of will disputes are successfully resolved through mediation.

  9. Impact of Testamentary Capacity Claims: Claims of lack of testamentary capacity are involved in approximately 30% of will challenges.

  10. Percentage of Will Challenges Involving Family Members: Around 70% of will challenges involve disputes between family members.

Essential Resources: Government and Non-Profit Organizations

Government Resources:

Non-Profit Organizations: