Homemade Wills and the effect on Businesses
Completing a homemade will or will kit may be cheaper than having a competent lawyer prepare your will, however it could cost your business, your business partners and your loved ones in the end. In Rogers v Rogers Young  WASC 208 Master Sanderson had to consider the construction (meaning) of a ‘homemade’ will and began his judgment with:
“On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.”
As Lawyers we see this all too often where loved ones and business partners are having to foot the bill to have a court look into what the will maker had intended.
Often families are left to wind up the business, but have not been directly involved in its running so found this a stressful and difficult task. If the business owner had left a comprehensive Will, there would have been instructions for how the business was to be managed after death.
Business owners need to consider whether they want the business to continue when they are gone, or whether they want the business to be wound up, and if so what happens to the assets of the business. Things to think about are:
- Who will take over running the business, especially if they are a sole trader or the only director.
- Documents to sit alongside the Will outlining plans and direction for the business.
A Business owner cannot leave the role as director to someone else in their Will, however the Will can provide for the transfer of the company shares to an appropriate person, as that person will become involved in the administration of the business. If the business has a Shareholder Agreement in place, any wishes in the Will should be consistent.
We recommend you consult a competent lawyer experienced in estate planning to ensure all your “i’s” are dotted and “t’s” are crossed to save your loved ones the extra emotional stress at an already difficult time.