We all hope that on our death, our executors and loved ones will be able to rely on our Will to understand and implement our wishes. But as one recent case demonstrates if you cut corners with the documentation it can cause serious problems for your loved ones.
The Queensland Court of Appeal recently considered a matter in which an elderly couple jointly executed a pre-printed Will (Will Kit) which included a number of handwritten wishes for both of them.
The couple married late in life and both had adult children from their previous relationships.
The Will appointed one child from each previous marriage to be the executors.
Of concern was an instruction that on the death of the husband the wife was ‘to stay’ in their jointly owned home and was ‘to handle’ all monies. If the wife died first ‘the reverse' was to occur. On the death of the last of them the estate was to be converted to cash and divided equally between their families from their previous relationships.
Unfortunately because of the imprecise wording and arguments arising between the members of the blended family, on the death of the husband, the Court was called upon to interpret the Will.
The Court held that the Will was a mutual Will and that the wording of the above clause ‘to stay’ and ‘to handle’ gave a clear impression that something short of an absolute interest is being given and therefore operated to sever the joint tenancy on the home, at least, from the date of the husband's death.
The Court further went on to say the provision for sale of the assets on the death of the last indicates that the survivor is being given those assets for their lifetime only and that they had no ability to deal with those assets during their lifetime. This resulted in the wife receiving only a life interest in the house and the money of the relationship.
This was not the intention of their Wills according to the wife but unfortunately that was the effect of the judgement delivered by the court.
The value of precision in drafting
This case is an example of how poor drafting can produce an unintended result even in relatively simple circumstances with basic assets. For business owners, investors or those with more complex family and financial situations the consequences can be even more unexpected.
You may know better than to use a Will Kit but even a lawyer-drafted Will that is not prepared with sufficient precision, accuracy and expertise can cause significant problems for your loved ones.
Our Tax, Structures + Planning team can analyse your asset situation, your desired testamentary outcomes and make sure no corners are cut that could cost your wife a house.