Critical Affairs to Get in Order
It is important to put measures in place to ensure that our “blood, sweat and tears” accumulated over our lifetimes fall into the right hands after we are gone. We may want our children to profit from our labours; our favourite charity to flourish from our endeavours; our spouse to be secure. The legal instrument that enables us to look after those we leave behind is known as a will. It is of paramount importance that the will is drafted to accurately reflect your wishes; to allow for the contingencies of life; and is valid.
If a will is invalid you may as well not have bothered creating one in the first place. An invalid will is discarded and legislation then dictates how your hard-won labours are to be distributed. This same legislation operates if you never made a will and died intestate. The legal process addressing this situation is known as Letters of Administration and is far more expensive than obtaining Probate in relation to a valid will.
Steps to Probate
1. Seek legal help
Lawyers are knowledgeable with respect of legislation and case law associated with the creation of a valid will.
Don’t fall afoul of the rules like Mr Burge who determined to “go it alone” and amend his will himself rather than seeking professional legal advice: Burge v Burge [2015] NSWSC 289.
In that case, Mr Burge had consulted solicitors who had drafted a valid will on his behalf in 1983.
Thereafter, and at varying times until his death in 2013, Mr Burge, himself, prepared various amending documents including a later will and handwritten notes on the original will.
These documents were found in different locations.
After two-plus years and two appeals incurring enormous legal expense, it was determined that the 1983 will would prevail.
2. Keep your legal instruments in the same place.
Most lawyers offer their clients a deed packet facility whereby your legal instruments can be stored free of charge.
Emery Partners has offices in both Newcastle and Cessnock and offers this facility.
Nada Vujat, Legal Practitioner Director, Emery Partners, Newcastle and Cessnock
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