Do I need a Lawyer to draft my Will?

Many people would agree that conversations about death and distribution of property following death can be uncomfortable. By shying away from these conversations, many people do not engage in estate planning and are subsequently left without a will.

Whilst it is not a legal requirement to have a will, it is an important document to have to allow you to control what happens to your assets and to make it easier on your loved ones following your death by clearly setting out your intentions.

Lawyers have an important role in assisting with the difficult discussions that arise during the drafting of a will. A lawyer will ask the important and relevant questions to ensure that your will properly distributes your all of your assets in accordance with your wishes and meets the relevant requirements of the Succession Act 2006 (NSW) governing valid wills.

Estate planning lawyers have a unique understanding of the issues that can arise with poorly drafted wills that may not meet the requirements of a valid will under the legislation or fail for other reasons such as uncertainty where a clause in the will is ambiguous or unclear. Issues arise where a will that is not valid can be rejected by the Court when the executor applies for probate following the death of the will-maker. If this happens and there is no prior valid will of the deceased, the rules of intestacy will apply, and the deceased’s property may not pass to who they intended it to pass to.

Further, where there is ambiguity in the wording of clauses in a will which intend to give gifts to certain beneficiaries, construction issues can arise, and the executor may have to apply to the Court to construe the clause in the will to determine the intention of the will-maker. This can be an expensive process and could result in the gift failing, with the intended beneficiary not receiving any gifts under the will and be left with nothing. If this happens and the person is eligible under s 57 of the Succession Act 2006 (NSW), they may be entitled to bring a claim against the estate for reasonable provision from the estate. This again can be a lengthy and expensive process.

It is important to note that these are just a couple of the issues that can arise from a will that has not been properly drafted, demonstrating the importance of engaging a lawyer to draft your will to avoid problematic and often stressful situations arising following your death which may likely already be a difficult and sensitive time for your loved ones.

If you would like to speak to one of our experienced Estate Planning lawyers about your Will and other related estate planning documents, contact our Team on 8525 2700, or click here to request an appointment with one of Wills and Estates Team.

Our Wills and Estates Team includes Michael Solari, Rebecca Exley, Valentina Abouzeid and Nicole Commandeur.

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