Article of Interest on Wills & Estates

SPECIFIC GIFTS (BE CAREFUL)

“I give my house at 20 Smith Street, Smithtown to my son Paul.” This type of provision is made in many Wills. Peter had 3 sons.

He had already advanced some money to his other 2 sons Mathew and James to help them each purchase homes during his life. He wanted Paul to have a home too. The Will was drafted in accordance with Peter’s wishes with little or no questioning.

Peter was in and out of the Lawyer’s office in short time. The Will was cheap.

Peter’s luck changed. He suffered a stroke, and had to move into aged care accommodation. The nursing home told him he really should appoint an attorney to manage his financial affairs. Peter appointed his son James who lived nearby. Peter was dealt with quickly by the Lawyer , with no attempt to connect or intertwine the appointment of the Attorney/Financial Manager with the Will. In fact, no enquiry was even made as to whether James got on with the other members of the family.

Peter became incapable of managing his affairs at all. James sold the house at Smith Street and the money from the sale was placed in a bank account. Peter died twelve months later.

Clearly, it was Peter’s wish that Paul have the house, but the house was no longer part of the estate. James had not acted outside of his authority. The Will made further provision that “I give any money in any bank account at the date of my death to be divided equally between my three sons.” Each son received one-third of their father’s estate, including the money that came from the house that was to have been Paul’s.

Peter’s Will had been drafted poorly for a number of reasons. Peter had insisted the Will was simple- he was allowed to think that- he wasn’t the advisor who ought to have known better. It is very easy for a Lawyer to draft the right Will after death. The skill is asking the right questions and drafting the right Will during the Will maker’s life so that it becomes effective and reflects the wishes of the Will maker after that person’s death.

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