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Welcome to The OMB Law Board, the podcast where legal insights meet practical advice. Hosted by Simon Bennett, Managing Partner at OMB Solicitors, this show delves into what you can expect when engaging with OMB Solicitors. Specialising in property law and commercial law, OMB also boasts dedicated teams for estate planning, contested estates, body corporate matters, litigation, and family law.
Each episode features in-depth discussions led by experienced team leaders, some with over 20 years of expertise. You'll gain valuable knowledge on initial consultations, cost assessments, timelines, and the importance of clear communication and confidentiality in legal matters.
Join us to break down barriers and navigate your legal journey with confidence. Tune in for expert advice, client stories, and tips on how to prepare for your legal needs. The OMB Law Board is your trusted source for all things legal.
00:01:11:04 - 00:01:21:04
Unknown
Hi there. I'm Simon from OMB solicitors. And welcome back to the OMB Law Board. Today I've got our senior associate in our estates team, Harley Wilkinson. Welcome back Harley.
00:01:21:06 - 00:01:30:18
Unknown
Hi, Simon. Thanks for having me back. Always love having you on the podcast. I do enjoy the podcast. Yeah. Fantastic. Hey, Harley, a couple of things.
00:01:30:19 - 00:01:55:23
Unknown
We've got a subscriber question at the end. I'm going to ask you. Okay. So that's going to be fun. And I think what we're going to do today is the biggest do's and don'ts for when you make a will, particularly if it's your first will. How does that sound? That sounds fantastic. Okay. So let's get into it and see what some of the biggest do's and don'ts are when you're making a will.
00:01:55:23 - 00:02:07:23
Unknown
And the last one is probably the most important. So stick around for that. Harley, where do we go to. What are we. What are we going to watch out for when we're doing these wills?
00:02:08:01 - 00:02:21:13
Unknown
Right. Well, look, I thought I'd dial it back a bit with this one because I think we've touched on some pretty specific topics in previous episodes, but there are some really, really important do's and don'ts when it comes to making a will.
00:02:21:15 - 00:02:30:20
Unknown
It can be really hard to know where to start. So one of the big things is go and make a will before you think you need one.
00:02:30:22 - 00:02:48:15
Unknown
Yeah, we can't predict when that might be. Life is full of uncertainties. We don't know what will happen. We don't know when it will happen and we don't know what the what the outcome might be. So make a will before you think you need one. That's most important thing. I think when you need it, it's too late. Absolutely it is.
00:02:48:16 - 00:03:05:15
Unknown
Yeah. By the time you really need it. Yeah. Like some other things in life. It's. It's too late. It's already happened. Really important to plan ahead, you know. And it is one of those things famously people just put off and put off. Why is that the case? It is one of the most important documents you will ever draft.
00:03:05:16 - 00:03:24:11
Unknown
It is? Yeah. By by far. Why do we put it off? I think people just don't like the idea of talking about death. I think it's just one of those topics that's just not very nice to have to talk about. And the more that you do, the more it feels like, oh, this is a, you know, this is a reality that we're going to have to face.
00:03:24:11 - 00:03:41:00
Unknown
And it's a bit easier for people to, you know, sweep it under the rug and just not have to face it. But it's a fact of life one way or another. You know, we're going to have to deal with it. Reality is, even if we don't talk about it, it's still going to happen. Right. That's exactly right. Yeah.
00:03:41:03 - 00:04:03:02
Unknown
Okay. So make you will before you think you need one. Excellent. I'm going to do another do. So another really important one is do a point. Do you think carefully about your executor or your executors. And you will. We've talked about executors before. We have. Yes. And I've got to come back to it because it is such a crucial part of your will.
00:04:03:03 - 00:04:25:19
Unknown
Yes. We want to make sure that we've got the right people as executors. They're the ones who have the power, they have the control. They have the authority to be taking all of those steps in your state administration. So the person or the people, they need to be reliable, they need to be trustworthy. And you need to know that they're actually going to be able to do the job.
00:04:25:20 - 00:04:49:06
Unknown
So should I ask them before I appoint them? I think that's a good idea. Yes. Absolutely yes. Because you don't want to appoint someone who maybe they've already acted previously for for under someone else as well as an executor, hated the job and they swear that they'll never do it again. Yeah. You're you're a little bit at risk, then, that they might renounce and not act under your will.
00:04:49:08 - 00:05:22:19
Unknown
And so taking that into consideration and appointing someone who's actually going to be prepared to act if and when the need arises is really important. Okay. Yeah. I, I would not appoint my sister. Okay. She's an influencer. She's traveling all over the place all the time. She's barely in Australia. So that's totally impractical. Very impractical. Right? Yeah. I can't have someone acting and administering my estate, which is going to be a full part time job when they're overseas, are in a completely different time zone, can't contact them for potentially weeks at a time.
00:05:22:19 - 00:05:28:24
Unknown
So make it someone who's practical, someone trustworthy, and someone who actually wants to do the job.
00:05:29:03 - 00:05:33:15
Unknown
Someone organized someone trustworthy. Someone who has the time to do it. Okay. Yeah.
00:05:33:15 - 00:05:47:18
Unknown
So I'm going to do I'm going to come to a don't like now. Interesting. Yeah. Cut the don't suggest important as the do so and these are all sort of level and importance but we're finishing with a really good one.
00:05:47:21 - 00:06:14:03
Unknown
So don't leave vague or unclear instructions. That's really really important. That's a trap that we can easily fall into. And I think the best way to explain that is to use a bit of an example. So and I'll use a personal one. So I was talking recently with my dad about his will, and he said to me, Harley, I'd like you to have my watch.
00:06:14:04 - 00:06:29:23
Unknown
So he's got a, got a nice old watch he bought himself when we moved to Hong Kong. And I said, oh, great, dad, that's really cool. Thank you for that. You know, where is your watch? I haven't seen it for a while. You haven't been wearing it where you go and track down the watch. He's got two watches.
00:06:30:04 - 00:06:49:18
Unknown
To me they look identical. There's a real one, a genuine one. Okay. And there's a fake one. Right? If he has in his will that I give my watch to my son. Which watch is he talking about? I hope it's a real one. I hope it's a real one too. So there's a question that there's a bit of bit of ambiguity.
00:06:49:18 - 00:07:09:04
Unknown
Is it the real one that he's referring to in the will, or is it the fake one? Yeah, that's where we have. So be specific. Be specific. Yes. It's you know it's got to be the genuine watch. If you can refer to the make the model a serial number, something like that. When we're talking about a watch that's going to be really clear, really specific.
00:07:09:05 - 00:07:30:22
Unknown
There's no room for doubt. So particularly with those personal type items, there may be more than one. Yeah. Be really clear. Yes. Absolutely. So it's really important to do that in the will when we've got specific gifts and we're disposing of specific bits of property. But it's also important to do that I think when you're giving instructions you need to be really clear.
00:07:30:23 - 00:07:57:07
Unknown
You need to be really specific, especially if you're getting help from a lawyer. Your lawyer is only going to be as good as you know the instructions that you give them and the clarity that you give them around what you want. So prepare for your appointment with your lawyer, you know, so that you can give good instructions. You have got a list of specific gifts and descriptions because your lawyer knows what they need to do, but they need to rely on good instructions.
00:07:57:07 - 00:07:59:05
Unknown
Good information. Okay. Yeah.
00:07:59:07 - 00:08:05:02
Unknown
another important dose on the list is don't rely on a template or a DIY will.
00:08:05:04 - 00:08:26:04
Unknown
I know I've talked about this previously, but I've got it. I've got to emphasize it again. Don't rely on those. They they're going to be 50% effective for 50% of people. That's a bit of a one size fits all. They're not going to be appropriate in circumstances where, you know, maybe you're part of a blended family. You've got
00:08:26:06 - 00:08:31:08
Unknown
at need or at risk dependance or beneficiaries you want to include in the will.
00:08:31:08 - 00:08:57:04
Unknown
You've got complex asset structures. If you've got companies, you've got superannuation, you've got self-managed super funds or there's trusts involved. These are all really complicated situations where a DIY or homemade will cut. It just won't cut it. I'm going to get crucified for the dad joke, but it reminds me of the Ron Burgundy episode, doesn't it? 50% of the time it works every time.
00:08:57:05 - 00:09:21:07
Unknown
Yeah. That's right. Yeah, I think it was in relation to a Cologne. That's one out. Yes. Yeah. Okay. Might not be able to talk about it. For all our viewers who have stuck around. Give me give me the biggest one. The most important one. Be it a Dora. Don't. So the most important one there is. Don't assume that your family will just work it out.
00:09:21:09 - 00:09:40:04
Unknown
That is a really, really risky and dangerous road to go down. And it's one that naturally a lot of us slip into because we've got, you know, we trust and we rely upon our family, you know, we feel safe with them. So we can we generally assume that, well, they'll give effect to my wishes. I'll do what I want after I go.
00:09:40:05 - 00:09:41:11
Unknown
Yeah, but
00:09:41:15 - 00:09:50:04
Unknown
you're leaving them in the lurch quite a bit there. You let them down. Don't you? You do. It's it's, you know, they're normally going to be dealing with
00:09:50:04 - 00:10:06:05
Unknown
the loss of a loved one, dealing with your loss and and dealing with grief. It's extremely difficult at that time to go through and process that. And that is exacerbated where there is no will, where you haven't left clear instructions about what you do want sometimes what you don't want.
00:10:06:06 - 00:10:20:18
Unknown
So it's impossible to follow wishes that aren't written down. Yeah. So don't leave it up to your family. Don't assume that they will work it out it. And if I can just add to that, it also creates
00:10:20:21 - 00:10:29:19
Unknown
risk of of dispute and conflict between them, which is what you want to avoid. Absolutely. You don't want your family fighting after you know you've passed.
00:10:30:00 - 00:10:57:22
Unknown
Not at all. No. Okay. So having a will that is very clear with what you wanted sets out your wishes. It gives something, gives something that your family can rely upon. Okay. Well, that's that's fantastic advice, Harley. And I'm sure that our listeners and viewers have really appreciated that. Let's jump to the subscriber question that we've got, because I think that'll give us a bit of an answer to one of the questions that, you know, people really want to know.
00:10:57:23 - 00:10:59:17
Unknown
Okay. So
00:10:59:19 - 00:11:10:02
Unknown
from one of our viewers, the estates team at OMB, I'd love to know. My wife and I own everything jointly. Do I even need to bother with the will?
00:11:10:05 - 00:11:23:23
Unknown
That's a good question. Yeah, it's one I get a lot. The short answer is yes. You do? Absolutely. When? When it comes to dealing with ministering in a state where, let's say all of the assets are jointly owned.
00:11:24:00 - 00:11:35:02
Unknown
Updating ownership information is one of those things that's not going to be too complex, right? But sometimes there are going to be assets that fall outside of what is jointly owned.
00:11:35:03 - 00:11:48:04
Unknown
For instance, superannuation. If a person's been contributing to their superannuation, if they've got a large balance, and if they were working before they passed away, they might also have a life insurance component attached to it.
00:11:48:10 - 00:11:59:04
Unknown
unless you've got something like a binding death benefit nomination, that's not going to that's not a jointly owned asset, right. That's not going to be dealt with automatically.
00:11:59:10 - 00:12:28:09
Unknown
We we're going to have a bit of an issue there. So that is where having a will is going to be really important. In particular because we need to have an executor. We need to have someone who is capable at law of acting in relation to Spouse A's estate. Without the will, we don't have that. That could result in an application to the court to get appointed as an administrator, in order to then go and deal with the superannuation deal with the life insurance.
00:12:28:14 - 00:12:48:02
Unknown
So thank you very much for the question. The short answer is you do need that will. Even if you do own all your assets jointly. Harley, it's been really informative today. Thank you for coming in. We really appreciate it. Thanks for listening and give us a like or a subscribe below and we'll see you on the next episode of the OMB Law Board.