Do-it-yourself car brake service could be less risky than a homemade will!

When I was still studying, when I had more free time and less life responsibilities, or said another way... “back in the day....” I had no aspirations to becoming a mechanic or a passionate car tinkerer.  I did enjoy repairing and mechanically maintaining my cars though.  I had the books, the manuals and many of the tools. 

 

Sure, saving money was a big motivating factor for a student, but so was the sense of achievement from doing it yourself.

 

Engine tuning, changing the oil and various filters, repairing or replacing worn parts, bodywork repairs, it was what many young blokes did.  I changed the head gasket on a Mini, but it took me more than 3 days though!  I mean, I had to keep referring to the manual, then source a torque wrench, interpret the manual again, buy another new gasket after damaging the first one I bought, and so it went.

 

One day, the brake pads needed replacing.  Referred to the manual again, followed the instructions - it took me what seemed forever, but it was the bleeding the brakes that stumped me!  I just couldn’t get the brake pedal to firm up.  I asked friends for help, we checked the manual, followed it to the letter, but the soft pedal persisted.

 

I wanted to save money, but I wasn’t about to gamble on such a fundamental safety risk.  The mechanic was retained, paid, and all was fixed professionally – firm brake pedal again and the confidence that it had been done right.

 

When it comes to home made wills, will kits and the like, when I last looked prices ranged from around $30 up to around $70.  I’ve read the instructions included in most.  Some are just 2 pages, others are in a comprehensive in booklet form.  The instructions are quite good and accurate.

 

Generally its appears to be an inexpensive way to get yourself a will.  But is it?

 

In my career as a solicitor, I guess I’ve personally helped clients in deceased estate matters where there was a DIY, or home made, will perhaps a couple of dozen times, maybe more.  In all of those cases – note I say all - there was a problem.  Some small, many were significant.  In the worst one, the will maker inadvertently gave a huge part of his modestly valuable estate to a religious organisation where it was clear it was never his intention.

 

In all cases, it caused additional stress and various degrees of additional expense.  Family disagreements resulted in many others.

 

I know my figures are just anecdotal, but it surely raises a serious issue.

 

From a cynic’s perspective, DIY and home made wills can be great for lawyers!  Given their high problem rate, it results in even more work and fees for lawyers retained to try to untangle the mess.

I began writing this almost a week ago.  It was timely that the Don't risk a DIY will article was published this week in the Sydney morning Herald.  Rather than have me reiterate how DIY wills can be more problematic, have a read of the article.  It’s quite succinct and to the point.

 

Bleeding the brakes just didn’t work for me, no matter how many times I read and followed the manual’s instructions.  Finally, the need to get a mechanic became obvious, I couldn’t get that brake pedal to work properly and, though totally mechanically unqualified, I knew there was a huge risk if that job wasn’t done properly. 

 

Unlike brake pedals that don’t work properly, a DIY will even after following instructions, problems in it are not so obvious to the unqualified and in my experience, far too often the problem only becomes apparent when it’s too late. 

 

Whether making your first or your next will, to protect and distribute your assets you’ve worked hard to build up, forget the DIY risks, and instead see the best person who is qualified and best able to help you, your solicitor.

Where there’s a will... So, where’s your will?

I’m referring to testamentary wills, not willpower.  A will is a legal document where the will maker (the “testator”) sets out what is to happen to his or her property after they die.  For example, who is get the money, the property, the assets. 

It used to be that a will had to be made precisely following certain requirements.  While in my view it’s a safer bet to have your will formally and professionally prepared, the law has caught up with alternate and more modern ways a will can be made.  I’ve briefly referred to this here.

But what happens to you will after it’s made?  Most, though not all, will makers who've made their will using a solicitor, have their solicitor store their original will on their behalf.  Most solicitors don’t charge for this service.  Some store the original of their will in a bank safety deposit box, although I’ve seen a steep decline in this, and I understand most banks now charge for this service.  And others keep them at home, sometimes in a safe, but often just “with their other papers”.

I just want to focus on the importance of ensuring you simply know where your will is, and to confirm that from time to time.

A client couple recently explained their wills, made at the same time over 10 years’ ago, was stored at their then solicitors’ office.  They had photocopies.  On their behalf and at their request, I asked for those wills to be sent to me.  I only received one!  In a follow up inquiry to the sender’s office, they insisted they only ever had the one copy and have no record of ever having the other. 

My clients were puzzled, as like many married couples, they made their wills at the same time, signed them at the same solicitors’ office at the same time, and were given the photocopies they now have.  This anomaly was quickly fixed by making a new will to replace the missing one.

This situation could’ve been worse had the missing will been required following the death of the will maker.

These clients’ experience got me thinking.  I suggest that if you have a will (and every adult should have one) not only do you keep a record of where the original is, but to regularly audit it to check that it’s there.  Whether it be in your office, bottom drawer (not ideal!), bank, trustee or solicitor’s office, check that it’s there.  I’d suggest every 2 years is probably reasonably regular.  I wouldn’t mind if my clients were to check and confirm that I still hold their wills.  Every two years is also the same period I suggest to most of my will clients is a good time to review their wills to ensure their wills still contain their intentions.

Oh, by the way.  I also suggest you should always let your executors know (of course, you’ve already let them know that you’ve so appointed them, haven’t you?) how they can retrieve your will for when that time comes.

Is your will "valid"? Or, does your will achieve what you want it to?

A will is a document in which the will-maker (the “testator”) chooses who receives their belongings and assets after they die.

A will can also do other things, such as expressing wishes about cremation or burial, funeral arrangements, appointing guardians for children, and in some cases setting up simple or elaborate trusts.  A will can also be used to appoint a guardian to look after children until they can look after themselves.

Sounds fairly straightforward?  Here’s a link to A Test of Wills, an article well worth a read that appeared last week in the Sydney Morning Herald.  It adequately summarises many issues about what can go wrong and some of the challenges.  If a contested matter ends up in a courtroom, I'd suggest that the figures in the article are a little on the conservative side though.

In my many years of practice, I've acted in many deceased estate cases involving home-made wills and wills prepared from a Do-It-Yourself kits. Amongst these, I cannot recall a single instance where there wasn't some issue or problem resulting from the will not being properly prepared.  Some were minor, and some were quite serious. In the most serious, the convoluted wording in the home made will, using a will kit, meant that a rural property was to go to a charity, while everything else pointed to a contrary intention.

The starting position for will makers is that a person who isn't suffering from mental incapacity, isn't unduly influenced, under duress or the victim of a fraud, is entitled to leave their estate to whoever they choose.

This position however is modified by family provision laws, where certain classes of people can apply to the court for orders that, despite an otherwise valid will where they "miss out", provision be made to them from the estate's assets. As a will maker, this may not be your desired result.

So, as the article suggests, get good professional advice and use a lawyer to draft your will.

Will Awareness Day - 19 August 2011

The Law Society of NSW today launched Will Awareness Day.  It is what it says!

Far too often I've been consulted regarding will and estate issues where there's a problem that could've easily been avoided or managed if only a will had been properly made, or even just made!  For example, there are many will kits, both online and paper based, available for people to make their own wills.  Usually they come with accurate and often very good instructions.  Yet, of all the matters I've been consulted about in my career that involved a home made will, I've never seen a home made that didn't have some issue or concern, many times very serious ones.

Will Awareness Day is a great opportunity to learn just a little bit more about wills and estate planning matters. There are many free talks and programmes scheduled in many places in New South Wales; if you'd like to try to attend one, here's the list on the Law Society's website.

If you prefer, for now, to read some general information, here's an informative Law Society article Should I make a will?  Also, here some links to some general information I've previously written about Wills and Estate Planning, and Deceased Estates, Probate and Estate Claims.

Do you have a will?  Or, has it been a while since you made one? Just don't leave it for too long to do something about it.

A little will power now, can save rather a lot later...

If you want to leave someone out of a will, the costs later may be very much higher than expected.

I regularly advise and prepare wills for clients – nothing unusual about that for a suburban law office.  Many times my advice includes that in making their will, they consider its effect on those left behind, particularly their loved ones, after they’re “gone”.  That might include thinking about the bigger picture rather than concentrating too much on getting back at someone.  This can be difficult for clients, especially when some emotion is involved and we can’t access a crystal ball that works!

For a long time we’ve all had rights and freedoms to deal with our property as we see fit for that day we’re no longer here.  But those rights and freedoms need to be exercised with other laws in mind that allow certain people who feel they’ve missed out from a share, or a bigger share of an estate, to ask the court to effectively adjust the will’s distribution of a deceased person’s estate.

For example, clients with modest to substantial estates may make little or no provision for one of their children.   Reasons can include estrangement, perceived drug issues, assumed wealth, even not getting a Christmas card!  My advice to the will maker in these cases is to inform of some consequences they may not have considered… such as exposing the estate to possible unintended but costly litigation.

An article in today’s Sydney Morning Herald describes a situation that I’ve encountered, unfortunately, many times – the risk of very high legal costs because the will maker, for whatever reason, didn’t make a gift to someone who probably expected a fair provision.

If you want to leave someone out of a will, the legal costs payable by your estate later may be very much higher than expected.

Each individual’s situation is different but if this sounds too familiar to your situation, a little prevention now, such as making a gift in a will that you may not have originally intended or wanted, can be a small cost now to help reduce the risk of much, much higher costs later.  Does this sound like you?  Have a chat with your solicitor about it!

More reasons to think about making a will

About a week ago, I began gathering some thoughts for my intended next post concerning making wills, especially given that anecdotally I've noticed an upward trend in matters I'm involved in. As it happens, day to day work took priority and then, when I happened to find 20 minutes to read last Wednesday's Sydney Morning Herald, I read a decent article by Lesley Parker on this very topic addressing many of the issues I too wanted to address.

Paker draws on various sources and comments on a range of matters, such as if you die without a will the law decides who gets what of your assets, which may not be what you intended. And, whether you like it or not, you do have a responsibility to provide for family. There's much more, of course, and it's definitely a worthwhile read.