Not so ‘free Will’ after all
A recent decision of the Supreme Court of Western Australia in Thomas v Pearman  WASC 209 serves as a timely reminder of the often disastrous consequences of home made wills.
The deceased in this case, Mr. Rowlands, prepared his own last will which was admitted to Probate in April 2015. The document he prepared consisted of the will itself, with a number of attachments to the will and a codicil dated 13 December 2012. All together the document was 14 pages long.
The family of the deceased faced great difficulty in trying to give effect to the late Mr. Rowland’s’ wishes, in which he with great detail, outlined how his various assets were to be handled.
Unfortunately much of what was directed was not legally or practically possible and the nominated Executor was required to make an application to the court to determine the proper interpretation of this home made will. After arguments being heard about whether Mr. Rowlands intended to set up a trust arrangement how that trust may be structured, the WA Supreme Court set out the approach to be taken by the Executor in relation to these various aspects.
So how much did Mr. Rowland’s FREE (homemade) will actually cost his family:
- The estimated cost of the probate application to recognise home made will as legal last will of the deceased, would have been approximately $5,000; and
- The estimated cost of the application for directions on how to interpret the wishes of the deceased in the home made will, would have been approximately $5,000 to $10,000.
So before the family can even attend to the usual administration of the Estate, there is a legal bill payable by the Estate of $10,000 or more, that could have been avoided. Had Mr. Rowlands had his will prepared with a lawyer he would have been advised about the most effective options to achieve his stated wishes and documents would have been prepared giving effect to his intentions. Upon his passing the Will could then have simply been used to set up the appropriate structures and his wishes carried out with minimal intervention from the courts required.
To give some perspective the average cost of making an individual standard will with a lawyer at Turner Freeman Lawyers is approximately $300 to $600. That is more than ten (10) times less expensive than the alternative, as shown from the example of Mr. Rowlands in the decision above.
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