Estate Litigation Associate, Martin Mallon, assists Executors and beneficiaries in dealing with issues that arise from DIY Will kits and homemade Wills. Problems can arise interpreting DIY Wills or when a Will has not been executed correctly. This was the case for Peter Brock’s estate when he died in 2006.
Introduction
Of the great sporting arenas around the world, few stands more illustrious than the Goliath that is Mount Panorama. Situated in the township of Bathurst in New South Wales, the 6.2-kilometre tourist road across Mount Panorama doubles as one of Australia’s premier racing circuits and host of the legendary 1000-kilometre touring car race.
Apart from the glory a driver receives through claiming victory of the gruelling 1000-kilometre race, the prize for winning Australia’s great race is the Peter Brock Trophy which was introduced in 2006 following his tragic death. The trophy immortalises the nine-time Bathurst champion as well as adds each winner to the race’s rich history.
DIY Will Kits can leave your estate at risk
Peter Brock’s sudden death in September 2006 was a heartbreaking reminder of the legal wrangles which can be left to the beneficiaries of an estate when a person dies without completing a valid Will, failing to set out who they wish to benefit from their estate.
Following Peter’s death, it emerged that he had signed a DIY Will kit but had not completed the required details correctly.
DIY Will kits promise to make writing a Will simple and stress-free. Although this may be a tempting option to get your affairs in order, you should not assume that a DIY Will kit can protect you and your estate in the same way a professionally prepared Will and proper estate planning can.
Having an invalid Will created a legal battle between Peter’s estranged spouse Beverley Brock, and his partner Julie Bamford and children.
While the celebrity estate extended into the millions and involved intellectual property rights, royalties and a Ferrari, the everyday Australian can still learn a valuable lesson from the Wills of the rich and famous, or battles that ensue due to lack of completing a proper estate plan.
Almost every Australian has an estate which must be distributed after they die. A lack of planning will most certainly create unnecessary difficulties for the beneficiaries. One would have thought that Peter Brock would have been careful about his legal affairs, being involved in such a dangerous sport for his living and having the financial means to pay for good advice. It just goes to show how any of us can be caught in this position and how important it is to properly plan for our loved ones and families.
Peter Brock and the battle of his beneficiaries
Peter died in 2006 and never got around to finalising his Will. There was a costly legal battle over which Will was Peter’s last Will and testament.
Peter was in a marital relationship with Beverley for over 25 years. They had two children and Beverley had a child from a previous relationship whom Peter raised as his own. In 1984 Peter made a Will in which, apart from some monetary gifts, Beverley was to live in the family home until marriage, death or the youngest child turned 18, with income paid to Beverley and the children until the youngest turned 25, at which time the children would receive the remainder of the estate.
In 2003, Peter (who was then involved in a relationship with Julie Bamford) started to complete a “do-it-yourself” Will kit at Beverley’s insistence. He filled in the details as to who he wished to appoint Executor. He also outlined his funeral wishes. He told Beverley to fill in the rest and signed it in Beverley’s and his personal assistant’s presence. His personal assistant signed as a witness; however, Beverley did not sign the document. No details as to the disposal of his estate were ever completed.
In 2006, Peter brought another Will kit into his office and asked his new personal assistant to write it up as he dictated it. She expressed concern that his Will was complicated, and recommended that he should see a solicitor. This Will was never signed.
In October 2007, the Victorian Supreme Court handed down its decision. The Court held the 2006 Will was not valid. It was not convinced that Peter intended the Will as he had dictated, be his final and complete Will, especially as he had made previous Wills so he would have been aware of the requirement for Wills to be signed and witnessed correctly.
A link to the case can be found here: Estate of Peter Geoffrey Brock; Chambers v Dowker & Anor; Dowker & Anor v Chambers & Ors [2007] VSC 415 (24 October 2007).
The Court held the 2003 Will as valid therefore revoking the 1984 Will. However, because the Will only appointed an Executor and gave no directions about his estate, the court ruled that Peter’s estate would have to be distributed under the rules of intestacy.
This meant that his two natural children, Robert and Alexandra would share the estate. They advised the Court that they were prepared to include James, who would otherwise be left out.
Peter’s partner, Julie Bamford went on to contest the estate under family provision legislation and the estate settled her claim out of Court.
Had Peter taken the time to ensure his wishes were validly recorded, he would have saved his family additional pain and suffering.
This case serves to highlight the dangers of ‘do it yourself’ will kits and the importance of ensuring your estate is in order.
What are the risks and potential problems that can arise from a DIY Will or homemade Will?
There are several risks and potential problems that can arise when using DIY Will kits or making homemade Wills, including but not limited to the following:
Poorly drafted terms in DIY Wills:
Instructions in DIY Will kits can be very confusing to a person who is not legally trained. This can result in terms in the Will being poorly drafted or difficult to understand. By having poorly drafted terms in a Will, disputes between beneficiaries and Executors can arise when trying to interpret the document. If a term in a Will is unclear and/or ambiguous, Executors or beneficiaries are often required to make an application to the Supreme Court to seek interpretation of the document.
Legal requirements:
A Will must be executed and witnessed in a particular way to ensure it complies with section 10 of the Succession Act 1981 (Qld) (“the Act”). People who do not seek legal advice often do not understand what is required to ensure the Will complies with the Act.
The signature of the testator (“will-maker”) should be witnessed by two people on all pages. Both witnesses must be present together at the time of signing by the will-maker. If there is any concern about the integrity of the document, the witnesses may be required to provide evidence to the Court as to what occurred at the time the document was executed.
A person must elect a suitable Executor to deal with administration of the estate upon their death. If a Will does not meet the requirements under the Act, it may be held that the document is invalid. If a Court declares the Will invalid, the beneficiaries will need to rely on the deceased’s previous Will, if there was one. Where there is no previous Will, the rules of intestacy will apply which could have significant ramifications. Intestacy rules are different in each jurisdiction. Looking after intestate matters can be complicated and a suitable Administrator will be appointed by the Court and assets will be distributed according to a pre-determined formula.
Not all assets can be gifted in a Will:
Many people are unaware that superannuation does not form part of a deceased person’s estate. You cannot gift your superannuation contributions in your Will. Superannuation assets can hold significant wealth. To nominate a beneficiary to receive your superannuation benefits upon death, a Binding Death Benefit Nomination (BDBN) is recommended.
Read more: Binding Death Benefit Nominations
Joint assets:
There can be confusion around jointly owned assets and what happens to your share when you die. Many people may not be aware that assets owned as “joint tenants” cannot be gifted in a Will. Assets owned as “joints tenants” will automatically pass to the other owner upon death. This is different to assets owned as “tenants in common”.
Legal disputes over DIY Will Kits
Eligible people can challenge a Will on the basis that they have not been left with adequate provision for their proper maintenance and support. When drafting a Will, it is recommended that consideration be given to the individual’s family situation. Blended families can be a complex issue to navigate. On most occasions, a person using a DIY Will kit or a homemade Will, have not sought legal advice in considering family provision claims and how to protect their estate and mitigate the risk of someone contesting the Will.
A Will can also be challenged on the basis that the will-maker lacked testamentary capacity, there is a claim of undue influence or he/she did not approve of the contents of the Will.
Testamentary Capacity
The test for establishing whether a will-maker has mental capacity to write and sign a Will was set down in the case of Banks v Goodfellow (1870). Under the Banks v Goodfellow test, the will-maker must:
- understand the nature of the Will and its effect;
- understand the extent of the property of which they are disposing by the Will;
- comprehend and appreciate the people with an interest in their estate and who may be entitled to make a claim against their estate when they die;
- not be suffering from any disorder of the mind or insane delusion that would result in an unwanted disposition.
Often DIY Will kits are not witnessed by people who can assess whether a will-maker has the requisite capacity to enter into a Will. Even if the DIY Will Kit ticks the boxes raised above, if the will-maker did not have testamentary capacity, the Will can be challenged by an interested party. A lawyer who specialises in estate planning can assess capacity and/or obtain necessary supporting documentation to minimise your Will being challenged on the basis that the deceased person did not have testamentary capacity at the time the Will was signed.
How can Attwood Marshall Lawyers help?
With the Bathurst 1000 ready to roar this week and eager fans watching the supercars take speed, it is a timely reminder that each of us, including supercar royalty, should ensure our most basic legal affairs are in order.
If you are thinking about using a DIY Will kit, you must be aware of the associated risks that can arise. It is always recommended to seek legal advice from a competent lawyer who specialises in this area to ensure your intentions are clear and your Will can be upheld after your death.
Attwood Marshall Lawyers have a team who specialise in estate planning and estate litigation. Our team can assist you with drafting all the legal documents you require to protect yourself and your assets. Important documents, such as a Will, Enduring Powers of Attorney, Advanced Health Directives and superannuation nominations should always be kept up to date. Proper estate planning takes into consideration your family situation, asset structure and how to manage your affairs in the event of incapacity.
It is for all these reasons that a DIY Will kit is not comparable to seeking professional legal advice.
If you are a beneficiary or an Executor of an estate and have concerns about a Will’s integrity or feel you have been left without adequate provision for your proper maintenance and support, it is critical you seek legal advice immediately.
