Your Will should be drafted by a solicitor who specialises in estate planning

Your Will should be drafted by a solicitor who specialises in estate planning and drafting complex Wills…because if you get your Will wrong it could cost your family dearly

George and Mildred owned a house at Charlestown. They attended their solicitor to have their Wills drafted. The solicitor didn’t find out enough about George and Mildred’s circumstances to be able to properly recommend the best Wills for their situation. The solicitor didn’t ask any questions about their personal lives or about how they owned joint assets. The consequence was that upon the death of George his two daughters from a previous marriage whom he loved dearly were disinherited.

It was a critical piece of information which the solicitor should have ensured he had, that both George and Mildred had children to other relationships. George was the father of Barbara and Beryl. Mildred was the mother of Graeme and Gary. George had a horrible relationship with Graeme and Gary.

George had owned the home at Charlestown prior to meeting Mildred. George wanted Mildred to have the right to live in the house for as long as she wished to do so and for the home to ultimately go to his daughters Barbara and Beryl. He never wanted his home to pass to Mildred’s children.

George transferred the home into joint names as joint tenants to give Mildred the security he wanted her to have. He thought it was the right thing to do. However, George didn’t realise that on the death of one joint tenant, ownership automatically passes to the other joint tenant. When George died, Mildred became the sole owner of the Charlestown property – and in Mildred’s Will, the Charlestown property is left to Graeme and Gary.

If George’s solicitor had done his job properly, he would have found out about George’s circumstances and recommended he change the ownership of the Charlestown property from “joint tenants” to “tenants in common”, so that George could then leave his half share in the property to his daughters.

By far the best outcome for George’s daughters would have been if George had sought good legal advice before he transferred the home into joint names.

To achieve what George really wanted to achieve – security for Mildred by way of a place for her to live for the rest of her life with a maximum inheritance for his daughters – he could have retained sole ownership of the Charlestown property and through his Will given Mildred a life interest in the house and a right of occupation. This would have allowed Mildred to live in the home for as long as she wanted, but also if necessary, to sell the home and use the proceeds to buy something smaller or fund her accommodation in a retirement village – upon the death of Mildred the home or the balance of the proceeds of the sale would have passed to Barbara and Beryl.

The role of the experienced estate planning solicitor and complex Wills specialist is to plan and balance the duty to provide for Mildred against the duty and desire to provide for Barbara and Beryl. It is a tricky balancing act, but not an impossible one.

The other common mistake we see is for inadequate provision to be made for Mildred which may involve the estate in a legal challenge by Mildred. Nobody is going to be a winner if that eventuates.

What is needed in these circumstances is careful thought and planning. There cannot be careful planning without careful listening and questioning.

The experienced estate planning solicitor and complex Wills specialist will find solutions to difficult problems.

The inexperienced Will drafter will make assumptions and fail to collect the detail necessary to draft a Will which really reflects the reality of relationships.

I trust this has been of interest. If you have any questions about any aspect, please feel free to contact our Estate Planning Team.