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07 January 2016

The risks of DIY estate planning

The recent Queensland case of Masci v Masci [2015] QCA 245 highlights the dangers of failing to seek proper advice about your estate planning.

The recent Queensland case of Masci v Masci [2015] QCA 245 highlights the dangers of failing to seek proper advice about your estate planning.

Mr and Mrs Masci married in 1984. They both had children from previous relationships, but did not have any children together. They prepared a joint Will at home that:

  1. appointed one of each of their children as joint executors;
  2. provided for the survivor of them to stay in the family home until their death; and
  3. directed that on the death of the survivor, Mr Masci’s children should receive 50% of the assets and Mrs Masci’s children should receive the other 50%.

The main reason for the dispute was that Mr and Mrs Masci owned the family home as joint tenants. This meant that the first to die could not gift their interest in the property in a Will, and the survivor would automatically own the whole of the family home.

Following Mr Masci’s death in 2012, Mrs Masci sold the family home and asserted that she was not bound by the terms of the joint Will because they owned it as joint tenants.

Various disputes arose about the terms of the Will, and the intention of the parties. One of the executors applied to enforce the Will. The two main issues that the Court had to decide were whether Mr and Mrs Masci intended to:

a) make a mutual Will – a binding contract not to change their Wills; and

b) sever the joint tenancy of their house, which meant they would own it as tenants in common and the interest of each would form part of their estate and be dealt with under their Will.

The Court ultimately held that Mr and Mrs Masci intended to make a mutual Will, and that they had intended to sever the joint tenancy ownership of their family home. This meant that Mrs Masci did not inherit Mr Masci’s interest in the family home automatically when he died, and it was to be dealt with under the terms of the joint Will.

The drafting of the joint Will and the way Mr and Mrs Masci owned their family home resulted in the parties enduring two court hearings over three and a half years, and legal costs likely to be disproportionate to the value of the estate property. It is also not clear whether the arrangements had the effect they intended.

Wills and other estate planning documents appear simple, and in some circumstances they are. But we often see issues arise from Wills that have been prepared at home. Not properly understanding the effect of a Will and the nature of your property can turn a simple task into a complicated dispute.

Seeking proper advice about your estate planning is essential to avoiding the expense and stress of disputes in the future.

If you would like further information about estate planning and these issues, please contact a member of our team.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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