5. Home made will with testamentary trusts but no beneficiaries named
The deceased left a substantial multi-million dollar estate. His last will was not drafted by lawyers.5 Two years prior he had engaged lawyers to prepare a draft will for him. But he decided he wanted to simplify it. Crossing out some bits he asked his non-lawyer daughter to type up a new will using the lawyers’ draft as a template, and some parts of it in his final will. After probate was granted application was made to the Court for construction of the will pursuant to the Court Rules and/or rectification under s 31 of the Wills Act 1997 (Vic). The Court found his final will was legally defective for a number of reasons and made rectification orders.
Testamentary trusts with no appointed beneficiaries in a home made will
The biggest problem was that the will did not specify the names of the beneficiaries of the testamentary trusts created under the will. As a result the will failed to carry out the testator’s intentions. The Court found that while the term ‘Beneficiary’ appeared in numerous clauses it was not defined. Nor were there any provisions in the will specifying for whose benefit the testamentary trusts had been created. The daughter gave evidence that her failure to include the clause from the lawyers’ draft into the final will was her oversight, and as a result the Court said, she had not followed instructions that she was to use the draft as a template.
The Court said that in order for the will to carry out the deceased’s instructions, it is necessary that the will be rectified by writing into the will a new clause to reflect handwritten changes made by the deceased to the lawyers draft where he had stated the name of the primary trustee (the beneficiary) of each of the testamentary trusts.
Other problems concerned gifts of cash to grandchildren at different ages; the Court rectified the will to 18 years. Another issue was potential capital gains tax liability. The Court found that the deceased intended his children be treated equally in respect of capital gains tax. However there was not enough evidence on the extent of the liability before the Court to resolve that part of the application.
Potential for tenancy issues in a home made will
Another important issue which can be overlooked and not understood is the importance of how real property is held – that is tenancy. How property is held or the tenancy determines who will inherit the property.
Will-making – worth seeking legal advice
Legal proceedings like those above run into tens of thousands of dollars. Way more than the cost of making a will with the assistance of a qualified lawyer specialising in wills and estate law. This can be money well spent to avoid costly mistakes needing court proceedings with uncertain outcomes later on at an already stressful time. It is worth noting what was said in a case decided by the Western Australian Supreme Court below:
“Home made wills are a curse. Occasionally where the assets of a testator are limited and where the beneficiaries are not in dispute no difficulties may arise in the administration of an estate. Flaws in the will may be glossed over and the interests of all parties can be reconciled.”2
[B]ut in larger estates where the will is unclear and the beneficiaries don’t agree it inevitably leads to expensive, time-consuming legal proceedings.
Consulting an experienced qualified lawyer with drafting a will to meet one’s wishes can be money well spent.
To find a lawyer in your area search the ‘find-a-lawyer’ registers provided by the Law Societies in your state/territory here.
To find more information on succession law and the law generally, search the sources on this page.
- Shulman v Donnelly  WASC 254
- Gray v Gray  WASC 387
- Thomas v Pearman  WASC 209
- In the Estate of Fairlie-Jones  SASC 59
- Re Hely; Application by Arbuthnot & Donoghue  VSC 614
21 July 2020
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