Its clear to us that these Wills have been the result of either the person drafting the Will not asking the right questions, or the client not being frank about their personal and financial affairs. Issues that can be overlooked or not covered include:

• Excluding potential beneficiaries. A common problem is the either accidental or intentional leaving out of the Will of someone who may be entitled in law to be provided for. This arises most often where one or both of a couple have been married previously and there are children of previous marriages. Too often such couples only want to include children they may have had together in their Wills. In other families, there are “the black sheep” no one mentions, so they too are overlooked.
• Assets – owned or controlled . A lack of understanding about what people “own” besides the family home and other assets in their joint names, or in their individual names is common. Their Wills often include assets owned by entities such as super funds, trusts, companies etc which they think they own and so try to leave via their Will.
• Agreements . These may include binding death benefit nominations regarding their superannuation or, in some instances, where businesses are owned, there can be business succession agreements in place. Both of these can impact on the estate.
• Lack of certainty . While the nature of the various entities or super may mean that, between spouses, the deceased spouse’s wishes within the terms of the current Will may be able to be met, there is no certainty that will be the case, and it will almost certainly not be the case if and when the children inherit on the death of the last parent.
• Lack of authority to the executor. Overall the standard or two or three page Will does not deal adequately with the personal or financial circumstances of the typical client referred by a financial planner. This usually means that the executor is not given adequate authority or direction in respect to entities or achieving equality of distribution. One can readily anticipate that they will be leaving their executor and beneficiaries considerable uncertainty and confusion, together with a high risk of litigation over their estate.

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