One widow recently discovered the difficulty of dealing with a draft will in a decision handed down by The Honourable Justice Hallen of the Supreme Court of New South Wales earlier this month. (The Estate of Bradley Scott Lyons  NSWSC 197).
Following a terminal diagnosis, the will maker sought advice and decided to update his will to include a testamentary trust for the benefit of his widow and three young children. The estate was valued at approximately $3,350,000.00, so the potential tax savings that would have been available over the life of the trust would have been substantial.
Unfortunately, the widow did not anticipate that her husband would pass away before they could see the lawyer to sign their final wills (having approved the drafts) and told her husband they would make an appointment to see the lawyer when he was feeling stronger.
The Court does have dispensing powers to grant probate of an informal document, that is one that hasn’t been executed in accordance with the legal requirements or at all. In the end, His Honour was “extremely sympathetic to the position of the Plaintiff” and went on to say, “It would be extremely easy to be tempted to apply the section, with improper liberality.” However, he could not grant probate of the draft will and an earlier will was declared to be his last will.
The earlier will did not include a testamentary trust and so his widow not only missed out on substantial tax benefits, but also had to put time and money into a hearing that she ultimately lost whilst grieving the death of her husband.
This recent decision serves as a timely reminder to ensure your estate planning is up to date and that you do not delay in getting your will signed once you start the will making process. Contact our experienced estate planning team today by telephone on (02) 9101 7000 or visit our website to get started online.
Don’t put it off!