Ten-Thousand Dollar Wills

In my four-decade career, I have never come close to charging $10,000 to create a Will for any of my thousands of clients, and that includes an international billionaire who controlled 27 different trusts, each with a corporate trustee!

However, I have acted in plenty of probate applications where a cheap or DIY Will has cost at least $10,000 to ‘fix’ after the testator died.

Here are three true examples from my clients in just the last twelve months:

The testator had created his own Will. He was a professional man who thought he knew what he was doing. He wanted his adult children to be able to live in his farming property during their lifetimes, then it was to be held on trust for charitable purposes. He did not know as much as he thought, and he made lots of errors in his DIY Will. His house was a run-down old building that he had built himself on his farming property. It was non-compliant and not fit for human habitation and did not conform to building or council codes. He misdescribed the property in the Will. There was not enough money in the estate to fund the charitable trust, and the adult kids did not want (and were not permitted) to live-in the house. The few hundred dollars he saved by making his own Will ended up costing his family a lot more than $10,000, trying to fix all the problems he created in his bodgy-dodgy arrangements.
The testator died in SA. He owned assets in both SA and China. He did not have a Will. His only relative in Australia lived in VIC. She instructed a generalist lawyer (not a specialist in Wills and estates), who fumbled around for over a year. The deceased had mortgages on all 3 of his SA properties, and the bank grew impatient with all the delays and began foreclosure proceedings. What could have been quick and efficient with a simple Will became much more complex and expensive through the inactions of firstly the testator (by not having a Will) and then the executor (by not instructing a lawyer who specialised in Wills and estates) and thirdly the generalist lawyer (by not knowing when she was out of her depth). The whole exercise will cost the estate much more than $10,000 to rectify.
The testator died in SA, but had created a Will in QLD. He actually had a good Will, made by a specialist lawyer. However his executor thought she knew what she was doing, and attempted a self-represented application for grant of probate. She lived in NSW. Her son collected the original signed Will from the QLD lawyer along with some other legal documents. She made a mistake in interpreting one of those other documents. It was a ‘Trust Direction’ meaning that it gave a command about assets held in a trust controlled by the deceased. It was signed on the same da\y as the Will. The executor thought the Trust Direction had to be admitted to probate, so she bundled it with the Will as part of her DIY probate application. The SA Court rejected her application and told her she had to get a specialist lawyer to sort out the mess she had created. It took us 5 affidavits and over twelve months and nearly $10,000 to fix up all her errors to obtain the grant of probate.

The old expression ‘once bitten, twice shy’ means that after a negative or unpleasant experience, someone becomes more cautious and wary of similar situations or things in the future. The idiom suggests that a person who has been hurt or disappointed by something once will be more hesitant or fearful about repeating that experience or engaging with the same thing again. For example: If someone burns their hand on a hot stove, they’ll likely be more careful about touching hot objects in the future.

We see this quite a bit in our legal practice. We find our happiest clients are those that have previously been through an expensive dispute, and are more than happy to pay good money for quality documentation to avoid that happening again.

Like many things these days, you can pretty much get a version of anything for little or no money. Some people might think it a good idea to DIY their own Will. But any mistakes you make preparing your own Will won’t become apparent until after you’re dead and it’s too late to fix them cheaply, if at all.

A document usually represents part of a solution to a problem. You usually need an experienced person to help you to identify and solve the problem, before you can then document it.

Experience and expertise from a lawyer who specialises in that area of law can assist you to identify and articulate the relevant issues, and pre-empt other issues you may not have thought-of.

DIY legal documents (whether cobbled together from the internet or purchased in a kit from the post office), will ALWAYS contain a disclaimer clause that says you’re own your own (YOYO) if things go wrong.

Quality control is the difference between hoping you have got something correct, and knowing with a high degree of confidence that you have it correct. For higher value problems and opportunities, quality control is worth paying-for. Involving us in your documentation will provide this quality control.

Many dispute (litigation) lawyers would prefer that you do not get proper advice on your documents, because they make considerably more money from disputes over badly drafted or inappropriate documents, than they do out of providing high quality documents in the first place.

The reality is that a good professionally made Will probably costs somewhere between $800 and $2,000 – depending on the level of complexity of the testator’s life and assets. However, a medium complexity dispute between claimants to a contested estate is likely to cost anywhere between $25,000 and $150,000 – per party. I have been involved in an estate dispute where all 5 adult children were independently represented, and the legal costs exceeded $250,000.

Based on these relative values, a set of quality documents is very cheap insurance against future costly disputes.

You don’t have to be bitten once to learn from others’ mistakes. You will find that our advice and assistance is very good value for money. Let our expertise and experience assist you to protect yourself, your family and your assets.

Other people might tell you that it is a good idea to DIY the estate administration to save on lawyers’ fees, BUT it probably won’t be their neck in the noose if things go wrong. In other words, by encouraging you to DIY, they get all the benefit with none of the risk, which will land on your shoulders.

And even if you think you know and trust your own family, strange things can happen when dealing with deceased estates. There is an old expression here: “You never truly know anyone until you’ve shared an inheritance with them”.

So … if you or someone you know has a deceased estate to administer, and want to ensure that the executor does the right thing and will not be personally sued for any mistakes, be cautious, and take advice before you proceed.

When it comes to Probate and administering deceased estates in South Australia, you can trust the oldest law firm in South Australia, Genders & Partners to do the heavy lifting for you and guide you through the process.

If you have any questions, or would like further information, please email us. Would you like a quick phone call to discuss? Feel free email us or use this link and book a timeslot for a free 15-minute phone consultation on my schedule: https://calendly.com/genders

We can help you to protect yourself and your family. We look forward to being of service.

Want to find out more?

Articles about DIY Wills:

Articles about DIY Probate:

All these and many more estate planning and administration articles are available for free from the oldest law firm in South Australia.

Disclaimer

The information contained in this document is intended as general information only and has been prepared without taking into account the needs, objectives or financial information of any particular person. Prior to making any decision, you should assess whether the information is appropriate to your particular needs, objectives and financial circumstances.

While Genders and Partners has taken reasonable care in the preparation of this information, subsequent changes in circumstances (including legislative change) may occur at any time and may impact on the accuracy of this information.

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Genders and Partners | Top 10 Estate Planning Predictions For Australia - Lawyer Adelaide

Why home-made Wills can be a LOT more expensive than you might think.
The secret weapons used by the rich & powerful to protect their assets, and transfer their wealth two or three generations ahead.
How Estate and Trustee Companies make BIG money from “free” Wills.
The Most Common Estate Planning Mistakes, how they can cost your family a fortune, and How to Avoid Them.
The Elements of a Sound Estate Plan – why a Will alone is not enough.
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How to guard against challenges to your Estate after you’re gone.