*The contents in this blog relates to legislation in New South Wales.
Once you have received a draft Will from a solicitor, is it is important to review the draft document and provide the solicitor with instructions regarding any amendments required. If the document does not require further amendments, it is in your best interests to make an appoint for the purpose of executing the Will as soon as possible.
Delay in executing a Will may lead to issues with administration of your estate after you die. Some of these issues include:
- Dying intestate: if you do not have a prior Will, your estate will be administered in accordance with the rules of Chapter 4 of the Succession Act 2006 (NSW) sets out in order of entitlement who can benefit from your estate.
- Dying without updating a Will: life can dramatically change in the space of a few short The arrival of children, marriage, separation or a change in financial circumstances can alter a person’s testamentary wishes. Upon death, a deceased’s estate will be distributed in accordance with their last validly executed Will. Unfortunately, this may not be a reflection of the deceased’s last testament wishes if their Will was not updated.
The recent case of The Estate of Bradley Scott Lyons  NSWSC is an example of a surviving spouse seeking relief from the Supreme Court of NSW to admit to Probate a draft Will which was prepared by a solicitor for the deceased, but never signed. The draft Will had the words “draft” printed on each page of the document. The document did not meet the legal requirements to be considered a validly executed Will. The deceased was aware the Will was a draft document and required legal execution. Unfortunately, due to the deceased’s failing health, an appointment to execute the Will with his solicitor was not arranged prior to his death.
This meant the deceased’s estate was to be administered in accordance with his last validly executed Will made some years earlier in May 2016. The 2016 Will distributed the estate directly to his wife. The newer draft Will had certain tax advantages as the residue of the estate was left to the deceased’s wife and children via a Testamentary Trust. The deceased’s surviving spouse was unsuccessful in her claim for relief to admit the draft Will to Probate. The Court was not satisfied the deceased intended the draft Will to form his Last Will and Testament.
In certain circumstances the Court can provide relief under section 8 of the Succession Act 2006 (NSW) to dispense with the requirements for execution and admit a document to Probate notwithstanding it may not have been executed in a formal way. However, in the case of Lyons, the spouse was required to prove to the Court that the deceased intended the draft document to form his last valid Will. Whilst the Court was sympathetic to the surviving spouse, the existing facts and circumstances of the case were not sufficient to meet the required burden of proof.
This case highlights the importance of ensuring your testamentary wishes are current and evidenced in a document that will be considered by the Court to be legally valid. As a solicitor who practices predominantly in Wills and Estates, I often hear statements such as ‘Oh they can sort it out after I’m gone” or “it’s not my problem, I will be dead and gone”. Leaving your estate to be sorted out by your executor and family can be a heavy burden. There can be delays with administering the estate to intended beneficiaries and the estate may incur significant legal expenses if litigation is required.
Unnecessary complications can be avoided by making sure you have a valid Will that accurately represents your current testamentary wishes. It does not take much time or money to ensure your last wishes are legally recorded in a valid Will.