myths and misconceptions about wills

Myths about wills – Common misconceptions about wills

After 25 years of legal practice, I have come across a lot of myths about wills and common misconceptions that people have about Wills.

Here are some of the common myths about wills I hear frequently.

Myths about wills #1 – My wife and I can just make one “joint will”

Many a couple will walk in off the street today and ask for a “joint” will. They believe that one Will can take care of everything and be signed by two people.  This is not correct.  Each person has to have a separate will.   Husband and Wife however can decide that the terms of their wills can reflect or “mirror‘ the other in many aspects; that is not a problem.   There is also the possibility of contracting to have family arrangements fixed in Wills but separate from any contract the Wills have to be prepared for each individual and signed separately.

Myths about wills #2 – I can make a “living will” to give authority to my nursing home carer while I am alive

The term “living Will” is not really a legal document here.  But a power of attorney properly made and executed can give authority to another person  in regards to your financial or personal matters or even some medical decisions.  The recipient of the power (attorney) however has to sign and accept the responsibility and disclose any past criminal convictions. They cannot be a carer in the sense of a professional carer,  although they can be a spouse.  Power of Attorney forms and regulations changed in 2015 so it important to have up to date documents drafted in accordance with the new legislation to make the Power of Attorney valid.  As with a Will, the person signing must have legal capacity to sign at the time they express their wishes.

Myths about wills # 3 –  I don’t need a will because my kids “know” they will get everything

This is the worst of the misconceptions.   It makes no difference if the intended beneficiaries “know” that the deceased wanted them to take everything. First of all, there is a distinction between biological and other children (stepchildren, adopted).  Second of all, it has to be stated what shares each child gets. Thirdly, if there is no formal Will, then in Victoria a legislated formula applies to set out who gets your assets when you die.  In Victoria if you die without a Will your spouse (note now there are more extensive definitions of spouse, not just the married kind) gets the first $100,000 then there is a division of the remaining assets one third to two thirds.   There is a list of “next in line” according to relationship if there is no spouse and children but it is not decided by you if you do not have a valid Will.

Myths about wills #4 – “Reading” of the will has to take place

A lot of people believe that- like in the movies -there is an actual sit down formal reading with the lawyer over a long boardroom table and everyone named in the Will has to be there or they won’t get their inheritance.  This is simply not true.  In fact the only person really that is involved with the lawyer doing the probate is the executor. The beneficiaries will be contacted in due course to explain their inheritance and can receive a copy of the will but there is no duty to have them in the lawyer’s office to advise them; in fact doing so may be a conflict of interest as the lawyer undertaking the probate of the estate is only acting for the estate. Therefore the executor’s lawyers must act in the executor/estate’s best interests rather than promoting and advising on beneficiary rights against the estate.  If a beneficiary feels that there is foul play then they can seek their own independent advice.

Mytha about wills #5 – It’s easy to disinherit so long as you just leave a small item in the will and cut them off the rest

There is a common misconception that if you want to leave a child or relative out of your Will all you have to do is leave  “something” such as a dinner set or a good book or even just $1 and they won’t be able to contest the Will.  Again this is not true.   There are many cases where people have already a share of the estate but have successfully challenged for more. Not all challenges are successful.

Please refer to my earlier blogs on inheritance and challenges to Wills for more information on this topic.

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