Avoiding Common Pitfalls When Making a Will
Drafting a will is a vital step in protecting your loved ones and ensuring your wishes are honoured after your passing. However, the process isn’t always straightforward, and even small errors can have significant consequences. To ensure your will is valid, effective, and clear, it’s crucial to avoid common mistakes. Here are the key pitfalls to watch out for when making a will in South Australia and how to avoid them.
1. Failing to Update Your Will After Major Life Events
Life changes such as marriage, divorce, the birth of children, or acquiring significant assets can all affect the relevance of your will. In South Australia, marriage automatically revokes a will unless it was made in contemplation of marriage. Similarly, divorce can alter how your will is interpreted, particularly regarding gifts to your former spouse.
How to Avoid This Pitfall:
Review your will regularly, especially after major life events.
Update your will promptly to reflect changes in your personal circumstances.
2. Not Meeting Legal Formalities
For a will to be valid in South Australia, it must meet specific legal requirements under the Wills Act 1936 (SA). For example:
The will must be in writing.
It must be signed by the testator in the presence of two independent witnesses.
The witnesses must also sign the will in the testator’s presence.
Failure to comply with these formalities can render your will invalid, leaving your estate to be distributed under intestacy laws.
How to Avoid This Pitfall:
Engage a qualified legal professional to ensure your will complies with all legal requirements.
Avoid DIY will kits that may not account for South Australian laws.
3. Overlooking Digital Assets
In today’s digital age, assets such as cryptocurrency, social media accounts, and cloud storage often hold significant financial or sentimental value. Without instructions in your will, these digital assets may be overlooked or become inaccessible.
How to Avoid This Pitfall:
Create a comprehensive list of your digital assets and include access details where appropriate.
Specify in your will how these assets should be managed or distributed.
Consider appointing a digital executor to handle your online affairs.
4. Ambiguous or Poorly Drafted Clauses
Ambiguity in your will can lead to disputes among beneficiaries, delays in administering your estate, or even court intervention. Common examples include unclear instructions, conflicting clauses, or failing to account for contingencies (e.g., if a beneficiary predeceases you).
How to Avoid This Pitfall:
Use precise language when drafting your will.
Outline clear instructions for distributing your assets.
Seek professional legal advice to ensure your will is comprehensive and unambiguous.
5. Failing to Consider Tax Implications
Certain gifts or distributions from your estate may have tax consequences for your beneficiaries. For example, capital gains tax may apply to certain assets transferred to beneficiaries.
How to Avoid This Pitfall:
Consult a legal or financial professional to understand the tax implications of your estate plan.
Structure your will to minimise potential tax burdens for your beneficiaries.
6. Not Appointing the Right Executor
Your executor plays a critical role in administering your estate. Appointing someone who lacks the skills, availability, or willingness to take on this responsibility can lead to delays, disputes, or poor management of your estate.
How to Avoid This Pitfall:
Choose an executor who is trustworthy, organised, and capable of handling financial and legal matters.
Discuss the role with your chosen executor beforehand to ensure they are willing to accept the responsibility.
Consider appointing a professional executor if your estate is complex.
7. Excluding or Failing to Properly Provide for Dependants
Under South Australian law, dependants (such as children, spouses, or domestic partners) who feel inadequately provided for can make a claim against your estate under the Inheritance (Family Provision) Act 1972 (SA). This can lead to costly disputes and delays.
How to Avoid This Pitfall:
Be realistic and fair when providing for dependants in your will.
Document your reasoning if you choose to exclude someone or provide less than they might expect.
Seek legal advice to ensure your will is less likely to be contested.
8. Relying on Informal Documents or Verbal Instructions
While letters, notes, or verbal promises may express your intentions, they are not legally binding. Only a properly executed will has legal standing.
How to Avoid This Pitfall:
Ensure all your wishes are clearly documented in your will.
Regularly review and update your will to reflect any changes in your intentions.
9. Ignoring Superannuation and Jointly Held Assets
Superannuation and jointly held assets often do not form part of your estate and are instead distributed according to binding nominations or survivorship rules.
How to Avoid This Pitfall:
Review your superannuation nominations regularly to ensure they align with your estate plan.
Seek advice on structuring your estate plan to account for these assets.
10. Putting Off Making a Will
One of the biggest mistakes is delaying the process altogether. Without a will, your estate will be distributed according to intestacy laws, which may not align with your wishes.
How to Avoid This Pitfall:
Take the first step by consulting an estate planning professional.
Recognise that having a basic will is better than having none at all.
Final Thoughts
Making a will is one of the most important steps you can take to secure your legacy and protect your loved ones. By avoiding these common pitfalls and seeking expert advice, you can ensure your will is valid, effective, and reflects your wishes.
At our firm, we specialise in estate planning tailored to South Australian laws. Contact us today to start the process and gain peace of mind knowing your affairs are in order.