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What is a will?

In theory, a will is a testamentary document containing the instructions of the willmaker on how his/her estate is to be disposed of on their death.  To be a valid will it must revoke all previous wills, appoint an executor, dispose of all of the estate, be in writing and be signed in a prescribed formal way.

An invalid will is where either one or more of the above qualifications has failed.  It does not necessarily eliminate the effectiveness of the will but the executor will have additional processes to comply with.  In the event of a major failure it may be necessary to make an application for Letters of Administration with reference to the invalid will.  Letters of Administration are always made where there is no will and there is property in the estate which is not able to be released to the administrator without first obtaining a grant.

What happens when someome queries the will?

Many testators for one reason or another either intentionally or by accident do not make everyone in his/her family a beneficiary.  Executors have the invidious task of dealing with disaffected ‘beneficiaries’ who, in their opinion, are entitled to a share or a larger share of the estate.  This is best resolved informally and as soon as possible before the matter escalates.

If the matter cannot be resolved informally a claim can be made in the Supreme Court under the Family Provisions section of the Succession Act.  Lawyers love these claims and are adept at inflaming the situation and extending the time to get a resolution in the Court as they are guaranteed their fees.  In the most bitter cases, a resolution is reached when the available money in the estate equals the sum of the legal fees (see Dickens, Bleak House).  Or as the parliamentarian Fred Birney said, “you get justice when the money runs out!”.

A particular worrying trend in judicial decisions is that many judges believe that many testators cannot be left to arrange their own affairs and rewrite the will on their behalf contrary to the written instructions prepared by a solicitor in the will. This is more so in the case where establishing the value of a carer relative is concerned as opposed to those other relatives who did little or nothing for the welfare of the deceased testator.

This outcome is one that will be welcomed and encouraged by solicitors.  It is called ‘ambulance chasing’.

So, the question is, WHY MAKE A WILL?

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