Many people question why some solicitors charge more than others for drafting a Will, especially when they just want something simple.  The short answer is: you get what you pay for.  When a solicitor charges competitively low fees, it’s likely that they are spending less time on your matter as a way to keep the costs down.  The real answer to the question, “How much does a Will cost?” is that it can cost a lot if it’s not done properly, and your estate can end up paying which means your beneficiaries get less.

The field of Wills and Estates is far more complex than most people realise and there are a great number of scenarios that can leave an estate vulnerable to disputes or problems with probate.  Preparing a legal Will that properly reflects your testamentary wishes involves a lot more than ticking boxes, filling out an online questionnaire or completing a DIY Will Kit. In fact, what many people fail to consider is that having a valid Will is about more than just deciding where your assets go when you die.  In your Will, you can express wishes about your funeral (i.e. you may want a specific song to be played and have a preference as to whether you would like to be buried or cremated), you can nominate guardians for your minor children and you can even use your Will to set out what you want to happen to your pet(s) when you die.  In this era of online Wills and DIY Will Kits, there is a myriad of considerations such as these that are overlooked.  When you take the time to meet with one of our estate planning specialists, we tailor your Will to suit your preferences and ensure that you turn your mind to all aspects of the estate planning process.

When you engage Websters Lawyers, you are not just paying for a document to be drafted, but are also paying for valuable advice about your estate planning in addition to other risk management measures, which we have outlined below.

Further, all of our estate planning specialists also practice in the field of deceased estates and contested estates, so we have a comprehensive understanding of just how many things can go wrong when a Will is not drafted correctly or when a testator (the Will maker) is not given proper advice.  This article will take you through the various complications that can arise when a Will is rushed in order to keep costs to a minimum and will explain just how much work goes into your Will when you engage Websters Lawyers.

Interpretation of the Will:

There are times when executors (the person appointed to manage the estate when the testator dies) come across clauses in Wills that are vague, difficult to follow or could be interpreted in more than one way. Not only will this cause a headache for the executor, but it may result in the executor having to apply to the Court for assistance with interpretation of the Will, which will cost your estate significantly in legal fees.

When you instruct us to prepare a Will for you, you are paying for our expertise and careful consideration of your instructions to ensure that all clauses are clear and properly reflect your intentions.  Given the high level of experience our solicitors have in probate applications, we have a unique understanding of how Wills operate after the testator has died and can ensure that your Will is clear.

Gifts

It is common for a testator to leave specific gifts to others in their Will (such as real estate, money or jewellery).  This seems simple enough, however if your solicitor is not taking the time to make the relevant enquiries regarding ownership of the items and taking detailed instructions about your assets and liabilities generally, it is possible for the gift to fail.

For example: Tim has a son from his first marriage and has since re-married his second wife Erica.  Tim and Erica then purchased a house for $400,000.00, each contributing $200,000.00.  Tim visits his solicitor and instructs her to draft a Will that gifts his half of the house to his son when he dies.  Without a diligent solicitor making enquiries for Tim regarding the ownership of the house and knowing what questions to ask, this gift to Tim’s son could fail.  If Tim owns the house a joint tenants with Erica, then the right of survivorship will apply, meaning that ownership of the property will automatically pass to Erica if Tim dies first and will not form part of his estate, causing the gift to Tim’s son to fail.

At Websters Lawyers, we make the necessary enquiries and ensure, to the best of our ability, that your Will operates as you intend it.  This is why we spend more time taking detailed information about your asset structure and considering whether any factors (such as a joint tenancy) will effect any clauses in your Will.  For example, if you mention any real estate in your Will, we conduct searches with Land Services SA to check how the property is owned and to ensure that it is described correctly in your Will.

Invalidity of the Will

A Will can be challenged on the basis that it is invalid for several reasons, including:

1. The testator did not have the necessary legal and mental capacity at the time the Will was created (i.e. they were not able to understand the Will due to illness, injury or disability etc.);
2. The testator was able to understand the Will, but they did not know and approve the contents of the Will (i.e. they signed it without reading it or having it properly explained by their solicitor);
3. The Will was forged or subject to other fraudulent activity; or
4. The testator was coerced or pressured into making the Will by another person.

When the validity of a Will is challenged, the records of the solicitor who drafted the Will are often examined to ascertain whether there is any evidence to help prove or disprove the validity of the Will.  The problem with this is that not all solicitors take active steps to create detailed and accurate records to reflect that the testator had capacity, understood the Will and was not being coerced or pressured.

As specialists in the field of contested estates, our solicitors are well equipped to ensure that our records contain comprehensive information about the instructions we took from the testator, the discussions had with them and any other relevant factors that could help circumvent any future allegations of invalidity. Solicitors who charge lower fees for a Will are far less likely to spend so much time undertaking these risk management measures.

Inheritance Claim:

Even if a Will is valid and there are no issues regarding interpretation, there is still the possibility that your estate could be contested on the basis that a family member, spouse or domestic partner was left without adequate provision from your estate. This is known as an inheritance claim, where an eligible person issues Court proceedings seeking a Court order to receive a money from your estate.  You can read more about inheritance claims here.

While you may be confident that there are no family members that would contest your estate, it is important that you still obtain the right advice as there may be an eligible person who can contest your estate that you didn’t realise had this ability.

Our solicitors specialise in inheritance claims and can help you to identify potential inheritance claim risks.  We can also provide you with options on how to structure your estate and set up your assets to mitigate the risk of an inheritance claim.  It is important to understand that you cannot prevent a person from contesting your estate provided that they are considered an eligible person, but you can ensure that you obtain the right advice and set up protective measures to lessen the risk.  Making enquiries with you to ascertain whether your estate could be at risk of someone making an inheritance claim (and providing you with advice) takes time, which is why our fees may be slightly higher than other solicitors.  As a minimum, we will discuss the prospect of a claim with you and ascertain whether there is any inherent risk and provide you with preliminary advice regarding who can make a claim and why.

Our solicitors take the time to have meaningful discussions with you to ensure that you turn your mind to a myriad of possibilities that could effect your estate when you die.  Our Wills and estate specialists do more than just the bare minimum of asking where you want your estate to go and who you want to be in charge of your estate when you die.  As you can see form the above, estate planning is never simple and by instructing a specialist who takes the time to ensure that your estate planning is as secure as possible certainly pays off in the long run.  Paying a little more now to ensure that you obtain the right advice and that your solicitor takes the necessary steps to ensure your estate planning is up to scratch can save your estate thousands or even tens of thousands of dollars in the long run.

When it comes to estate planning, your get what you pay for and at Websters Lawyers, you are paying for a high quality and well-rounded service, not just a simple document.