Importance of Having a Will - What Happens if a Person Passes on Before Signing Their Will

Wills are certainly one of the most popular reasons for people to see a lawyer.  That’s understandable, if you are in a position to leave assets you have accumulated over a lifetime to those who are dear to you, you want to make sure your money or assets are divided up according to what you want.

A clear and unambiguous Will is a great gift to leave to your nearest and dearest.  Everyone knows where they stand and the potential for disputation and bad feeling is minimised.  An unclear Will is a recipe for great upheaval and potential unhappiness amongst the people you care about most.

A recent court decision in the NSW Court of Appeal has clarified the importance of being clear in your instructions to any solicitor tasked with preparing your Will.

In the case, the son of the deceased person took his mothers Solicitor to court because, although his mother had started down the road of preparing a new Will, his mother had died before the Solicitor had finalised the paperwork and the signing the new formal Will.  

The son would have been a beneficiary of more of his mother’s estate if the new Will had been signed.

Although a lower court initially found against the Solicitor, the Court of Appeal overturned that decision.

Basically, the take out message from the case is that having your affairs completely in order as you enter your last days is critically important.  If there is any risk of imminent death, an informal Will can be offered by a Solicitor.  

If you have given instructions to a solicitor and are unable to sign a formal Will the same day, you should ask the solicitor if you can sign the instructions you give the solicitor.  There are also other avenues available to avoid complications.

This would mean that if anything happened to you between giving instructions and signing the formal Will, your instructions could be admitted as an informal Will to the court.