DIY Will Kit proves Unnecessarily Expensive

We regularly remind our clients of the importance of having properly drafted Wills.

Poorly drafted Wills, which we invariably see when someone has tried to draft their own Will with a DIY Will Kit, put your estate to unnecessary expense (the value of the estate being reduced for the beneficiaries because of legal costs in having the court become involved) and the risk of assets not going to the intended beneficiaries.

In the recent matter of Floyd v Floyd & Ors, Judge Andrews in the District Court at Brisbane in July this year had to interpret a number of ambiguous clauses in a DIY Will Kit completed in 2009 by a Mrs Looby who died aged 75 years in November 2016.

Mrs Looby’s estate roughly consisted of her house worth about $325,000.00, $95,000.00 in bank accounts, $10,000.00 in shares and a motor vehicle worth about $6,000.00.

As with most DIY Will kits, the document had various blank spaces that had been completed by Mrs Looby.

The ambiguities that caused the executor, Mrs Looby’s brother Brian Francis William Floyd, to have to put the matter before the court for a judge to clarify before Mr Floyd could wind up the estate, were as follows:-

1. The identity of the beneficiary of the gift of “furniture – car – incidentals” was unclear as it referred to a person named “B. Floyd”; and
2. It was unclear whether the gift of “HOUSE AND CASH ASSETS” split between nine beneficiaries included Mrs Looby’s shareholdings.

The problem was that the name “B. Floyd” could refer to any three of the Floyds named in Mrs Looby’s Will as having the first initial “B”. Those persons were Mrs Looby’s brother, Brian Francis William Floyd (the executor), her nephew, Bradley Thomas Floyd, and also her grandnephew, Brayden T Floyd.

The court ultimately had to reduce the ambiguity arising from the words “B. Floyd” and the ambiguity arising from the words “CASH ASSETS” by giving effect to the intention of Mrs Looby.

The court found that the “furniture – car – incidentals” should be construed as a gift to Mrs Looby’s brother, Brian Francis William Floyd, as it was unlikely she intended for his son B. Floyd to have the car as he was not yet 10 when the Will was made. The judge also accepted the executor, Mrs Looby’s brother’s evidence that Mrs Looby had told him that his son Bradley would receive her wooden table and that he would be receiving the rest of her furniture and her car.

The court also decided that Mrs Looby intended that cash assets should include Mrs Looby’s shareholding.

The judge ordered that Mr Floyd’s full costs of taking the matter before the court for clarification of how he should interpret the Will to distribute Mrs Looby’s assets to the beneficiaries should be paid from the estate.

We can see from the reading of the judgment that there was one firm of solicitors and one barrister involved in the matter.  If there had have been a dispute between beneficiaries as to how to interpret the ambiguous clauses, we expect there would have been multiple solicitors’ firms involved and multiple barristers involved ratcheting up the legal costs dramatically.

Even as it was, the cost of the solicitor’s engagement and barrister’s fees at the hearing before the judge we expect would be not less than $20,000.00, which exceeds the value of Mrs Looby’s shares!

It is very likely that had Mrs Looby utilised the services of a lawyer to draft the Will that the estate would have been spared the reduction in value of the estate as a result of legal expenses, as well as the delay and uncertainty of having to put the matter before the court.

So as ever the message is we strongly recommend our clients see their lawyer at Macrossan & Amiet to make a Will if you do not have one, or consider updating your Will if it has not been made recently, or alternatively there has been a significant change in circumstances.