The consequences of DIY Wills. You would be surprised by how many wealthy people die without a Will or don’t update their Will to suit a change in their circumstances. Senior Associate Melissa Tucker discusses the consequences of not having your legal affairs up to date.
Of the great sporting arenas around the world, few stand more illustrious than the Goliath that is Mount Panorama. Situated in the humble township of Bathurst in New South Wales, the 6.2 kilometre tourist road across Mount Panorama doubles as one of Australia’s premier racing circuits and host of the legendary 1000 kilometre touring car race.
Apart from the infinite glory of the Bathurst 1000 that a driver receives through claiming victory after 1000 gruelling kilometres, the prize for winning Australia’s great race is the Peter Brock Trophy which was introduced in 2006 following his tragic death. The trophy immortalises the nine-time Bathurst champion as well as adds each winner to the races rich history.
His sudden death in September, 2006 is a poignant reminder of the legal wrangles which can be left to the beneficiaries of an estate when a person dies without completing a will which properly sets out their wishes. Following Brock’s death, it emerged that he had signed a DIY will kit but had not completed the required detail, creating a legal battle between his estranged spouse Beverley, and his partner Julie Bamford and children.
While the celebrity estate extends into the millions and involves intellectual property rights, royalties and who gets the Ferrari, the everyday Australian can still learn a valuable lesson from the Wills of the rich and famous because:
- Almost every Australian has an estate which must be distributed after they die; and
- A lack of planning will most certainly create unnecessary difficulties for the beneficiaries.
A famous Australian legend who left things too late to advise his family of his true intentions is Peter Brock.
He died in 2006 and simply never got around to finalising his will. There was a costly legal battle over which Will was actually Brock’s last Will.
Peter Brock was in a marital relationship with Bev for over 25 years. They had two children and Bev had a child from a previous relationship whom Brock raised as his own. In 1984 Brock made a Will in which, apart from some monetary gifts, Bev was to live in the family home until marriage, death or the youngest child turned 18, with income paid to Bev and the children until the youngest turned 25, at which time the children would receive the remainder of the estate.
In 2003, Brock (who was by then involved in a relationship with Julie Bamford) started to complete a “do-it-yourself” Will kit at Bev’s insistence. He filled in the details as to executor and his funeral wishes. He told Bev to fill in the rest and signed it in Bev’s and his personal assistant’s presence. His PA signed as a witness but Bev did not. No details as to the disposal of his estate were ever completed.
In 2006, Brock brought another Will kit into his office and asked his new personal assistant to write it up as he dictated it. She expressed concern that his Will was complicated and he should see a solicitor. This Will was never signed.
In October 2007 the Victorian Supreme Court handed down it decision. The Court held the 2006 Will was not valid. It was not convinced that Brock intended the Will as dictated, be his final and complete Will, especially as he had made previous Wills so he would have been aware of the requirement for Wills to be signed and witnessed.
A link to the actual case can be found here: Estate of Peter Geoffrey Brock; Chambers v Dowker & Anor; Dowker & Anor v Chambers & Ors  VSC 415 (24 October 2007).
The Court held the 2003 Will as valid therefore revoking the 1984 will. However, because the Will only appointed an executor and gave no directions about his estate, the court ruled that Brock’s estate would have to be distributed under the intestacy rules.
This meant that his two natural children, Robert and Alexandra would share the estate. They advised the Court that they were prepared to include James, who would otherwise be left out.
Brock’s partner, Julie Bamford went on to contest the estate under family provision legislation and the estate settled her claim out of court.
Had Brock taken the time to ensure his wishes were validly recorded, he would have saved his family additional pain and suffering. This case serves to highlight the dangers of ‘do it yourself’ will kits and the importance of ensuring your estate is in order.
It is a timely reminder in order to avoid costly litigation to ensure your Will is up to date and your intentions are clear. By spending the time now planning how your estate will be distributed will save your beneficiaries the expense of litigation, if in the future they are forced to contest an out-of-date Will.
Some of the following events in your life are an important reminder that you should review your Will:
- Death of a beneficiary
- Birth or adoption of a child or even grandchild
- Transfer of a significant assets
- Acquisition of a new significant assets
- Change in company structures ie director, trustee or shareholder
- De facto relationships with children from other relationships
- Superannuation fund changes
- Employment changes
- Moving to another state
So, no matter the size of your estate don’t leave it to the Courts to decide the fate your assets.
Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers.
We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff.