Will Kit from State Trustees - Plain English or Gobbledegook?

thwarted on 19/07/2022 - 11:53
Last edited 04/08/2022 - 16:25 by 1 other user

I've recently created a very standard will using State Trustees "Plain English" online will kit.

The beneficiary is my wife, and in the event of her prior death, our adult children. Here is the exact clause (other than my wife's name) in the will that covers this:

"…. to distribute as follows:
My Wife, Jane Doe, if Jane survives me. If Jane Doe dies before attaining a vested interest in this gift, leaving a child or children living at the death of the survivor of me and my deceased beneficiary will take and if more than one in equal shares the gift which their deceased parent would otherwise have received."

It's definitely not plain English…. but does it even make sense? All I can think is that there is a wording or punctuation error but this seems unlikely.

Am I missing something here? Over to you budding legal eagles.

INTERESTING UPDATE BELOW: https://www.ozbargain.com.au/comment/12499043/redir

Financial Will

Comments

  • AndyC1 on 19/07/2022 - 12:04

    I would reword as it does not state that you want 100% to go to Wife if she is alive when you die.

    If you are a member of an RSL or Bowlng club than call them and see if they have a free will service to help you write a will. In NSW most do.

  • thwarted on 19/07/2022 - 12:16

    It does say my estate is distributed to my wife and I don't have a problem with that. But the wording which is meant to say that if my wife dies prior to getting my estate, it will instead be distributed to our children, is problematic to me. I know I can always get another will drawn up, but I suspect the wording is ok and I just can't decipher it.

    • Xyzzy on 19/07/2022 - 13:17
      +2

      Does it say "our" children though? To me it reads as "her" children.

      But regardless, I was advised (when having to act as executor) that it is better to explicitly refer to the child beneficiaries by name, rather than just referring to "the children". If you just refer to "children" generally, the executor can't just assume that the known children of the marriage are all the children you've ever had - which makes it a little more complicated and does open you up to the possibility of some rogue person claiming to be your long lost illegitimate off-spring (admittedly this is unlikely unless you have a particularly valuable estate).

  • djkelly69 on 19/07/2022 - 12:43
    +2

    The drafting is absolute trash, which is coincidentally where a state trustee's will kit belongs. Commas are not your enemy.

    See a lawyer or at least use one of the sites which pop up on here occasionally where a lawyer actually looks at the will to check it makes sense before you sign it off.

  • bobbified on 19/07/2022 - 12:45

    I don't know how true it is, but I hear that these are okay if you don't have dependents and just need a simple will. But as soon as there's kids involved, they're absolutely worthless.

  • Eatslikeacat on 19/07/2022 - 12:45
    +3

    After the ABC Four Corners expose of Public Trustees I have zero trust in them. See: https://www.abc.net.au/news/2022-03-14/public-trustee-four-c… It wasn't only what they did but I was greatly unimpressed with the lengths they went to in order to prevent the story from going public.

    Also be very cautious of will kits where there is an offer to act as your executor for a percentage of the value of your estate. That percentage can work out to be a huge amount whereas if you engaged a solicitor they might only charge $1,500 to $2,000. They offer you the will kit for free, earn your trust, and kindly offer to be executor for a percentage. Talk to your solicitor, negotiate a fee, don't trust percentages.

    • thwarted on 19/07/2022 - 13:02

      Agree that signing over executorship would be a bad move. I have nominated my own executor in the will and just wanted to use State Trustees to provide the wording and be a secure repository for the document, but now I'm having second thoughts.

      • Richmond Tigers on 19/07/2022 - 13:39

        Does the executor know how to deal with a will? I was thrust into being executor without knowing jack all, but enough googling got my head around it and saved thousands in lawyer fees.

  • Horacio on 19/07/2022 - 12:53
    +3

    I'd say firstly it's a total plain language fail, but also yes to my mind there's a total breakdown in meaning for a few words after "deceased". Looks like an editing error.. how can this not have been spotted before??

    • thwarted on 19/07/2022 - 13:04

      I suspect you're right. I think I'll contact State Trustees and ask for an explanation. Stay tuned!

  • Richmond Tigers on 19/07/2022 - 12:59

    Yes.

    Your will leaves everything to your wife I am guessing?

    the wording is basically if she dies before the will is executed, the kids get what would have been her share, if one child they get it all, if more than one child its shared equally.

    You really do not need a will if you know the spouse will share what they would inherit, or you don't care whoever gets whatever you leave behind. Its really a very unnecessary step to have a will that leaves anything to your spouse because they are entitled to it anyway. All it does is create the annoying step of getting granted probate over the will.

    If you were terminal, just skip a will and hand over your affairs before you pass, its a massive pain in the arse for the surviving family members to deal with after a death and it also leaves the door open for people to contest the will.

    My mum passed without a will, everything went to my dad and we were too young to know better and he blew a shittonne of what was ours, in that event if you had a spouse you know would swindle your kids, then make sure the executor is impartial and has a copy of the will. Then when my dad passed rom terminal cancer, he left a will for only his 2 kids when really up until basically the last day, we was more than capable of just handing over and splitting all the assets himself.

    • djkelly69 on 19/07/2022 - 13:08
      +1

      Its really a very unnecessary step to have a will that leaves anything to your spouse because they are entitled to it anyway.

      Intestacy laws are a fair bit more complicated than just 'partner gets everything', particularly with blended families.

      And I think you would much rather be applying for probate than letters of administration.

      • Richmond Tigers on 19/07/2022 - 13:23

        It is in terms of the example given as there are adult children, in a way its a moot point unless the intent is to give everything to the wife and nothing for the kids.

        For intestacy, assuming the husband owns everything, without a will it gets split 3 ways. With a will it potentially gets left to the wife and then contested.

        Its difficult to tell without knowing OP's share in the assets and the intent about how the assets are distributed.

      • thwarted on 19/07/2022 - 13:41

        Quite right. I want to keep the legal side clear and simple. I will also prepare an "intent" document (with no legal standing) to accompany the will, that I will trust my executor and beneficiaries to take into account (which I know they will).

  • Seraphin7 on 19/07/2022 - 13:46
    -1

    My Wife, Jane Doe, if Jane survives me.

    Everything will go to your wife if she is alive at the time you die

    If Jane Doe dies before attaining a vested interest in this gift

    If she dies before you

    leaving a child or children living at the death of the survivor of me and my deceased beneficiary

    Any living child(ren) will be the beneficiary(ies) if your wife dies before you

    will take and if more than one in equal shares the gift which their deceased parent would otherwise have received

    Those children will receive, in equal share, what would have otherwise gone to your wife had you died before her

    • Quantumcat on 19/07/2022 - 13:56

      The first and second quotes make sense as written, the fourth one I understand better thanks to your explanation (it just needed some commas), but the third one still eludes me. The survivor of me and my deceased beneficiary. What? Is it saying, the person who is still living out of a choice of me and my deceased beneficiary - this is a will for "me", so I obviously haven't survived. And the phrase says deceased beneficiary, so that person has obviously not survived either. Is this a will assuming that when you die, the world has turned into a zombie apocalypse movie?

      • Seraphin7 on 19/07/2022 - 14:14
        +1

        It's convoluted wording, but it makes it to state that for your children to get a share your wife must die before you AND those children need to be living at the time of your death.

        Then only those children who are alive at that point (noting that some may have deceased prior to that point) are eligible for an equal share of your assets.

        The practical outcome here is that if it came to probate, the court would (likely) deal with it in the way I have described. The wording should certainly be reviewed, but it does provide for the described outcome.

      • redvaldez on 19/07/2022 - 15:16
        +3

        It makes more sense if you read it in context as "living at the death of the survivor of me and my deceased beneficiary", with "at the death of the survivor of me and my deceased beneficiary" being an event in time.

        It could definitely be worded better though. I would say something like this instead:

        "If Jane Doe survives me but dies before attaining a vested interest in this gift, leaving a child or children living at the date of her death, then such child or children will take and if more than one in equal shares the gift which their deceased parent would otherwise have received."

        Source: lawyer who drafts Wills

        PS: OP, don't use a Will-kit or an online Will service, see a lawyer.

        • thwarted on 19/07/2022 - 16:32

          Spot on wording redvaldez. How the hell (where I'm possibly going) can an organisation like State Trustees not get this right? I've given them the benefit of the doubt at this point and written to them requesting an explanation for their confusing wording. If I don't get a satisfactory response I'll escalate it and request a refund for providing me with a "non fit for purpose" product. I may even nominate the Ozbargain Community as the arbiters (that should gee them along).

  • adam on 19/07/2022 - 17:10

    Terrible wording because they want it to be for a generic beneficiary, it makes sense to me with the following punctuations:

    …. to distribute as follows:
    My Wife, Jane Doe, if Jane survives me.
    If Jane Doe dies before attaining a vested interest in this gift, leaving a child (or children) living at the death of the survivor of me and my deceased, beneficiary will take (and if more than one in equal shares) the gift which their deceased parent would otherwise have received.

    Parentheses could be commas, but clearer with parentheses.

    • djkelly69 on 19/07/2022 - 17:30
      +2

      me and my deceased

      ??

  • thwarted on 19/07/2022 - 20:28

    After reading all the comments I'm now certain it's not only very poorly written, but it also doesn't actually mean what is intended. I'll be lodging a complaint and requesting a refund using the following breakdown of meaning.

    …. to distribute as follows:

    
My Wife, Jane Doe, if Jane survives me.
    means: My wife if she is still alive.

    If Jane Doe dies before attaining a vested interest in this gift,
    Means: If my wife dies before she becomes the formal owner of my estate,

    leaving a child or children living at the death of the survivor of me and my deceased beneficiary
    means: leaving at least one child that is alive when both of us are dead

    will take and if more than one in equal shares the gift which their deceased parent would otherwise have received.
    doesn’t make sense written this way as it doesn't nominate who

  • Eatslikeacat on 19/07/2022 - 20:59
    +1

    1 I REVOKE all wills and any testamentary dispositions previously made by me.
    2 I APPOINT with effect from the date of my death my wife Jane Doe (date of birth 1/1/1960) as the executor and trustee of this my will HOWEVER if Jane Doe does not survive me or the appointment fails for any other reason then I APPOINT my ex wife John Doe (date of birth 1/1/1955) (he is a man now) as the executor and trustee of this my will.
    3 My executor shall hold the whole of my estate wherever situated on trust and do the following:
    (a) GIVE the balance of my estate to Jane Doe; and
    (b) GIVE the balance of my estate to my surviving children in equal shares if Jane Doe does not survive me.
    4 My wife and surviving children may engage in MORTAL KOMBAT whereupon the victor shall inherit it all.

  • thwarted on 04/08/2022 - 16:06
    +1
    Merged from Will Kit from State Trustees - Update: WOW It Actually Was Gobbledegook

    I recently asked the forum to comment on the wording of my State Trustee Will. https://www.ozbargain.com.au/node/713865

    Well, I emailed them asking for some assurance that the wording was correct. A few days later I got a phone call from one of their customer service reps who told me it was fine, and they were all like this. I asked her if she had checked with the legal department and she told me no, but it was standard wording so wouldn't be an issue. To their credit she then offered me a refund if I wasn't happy. I said I'd think about it.

    A few days later after reading it again I emailed them once more saying I still thought it was wrong and this time I suggested a small revision that seemed to make more sense.

    Today I got this response in an email from them with a change pretty much the same as what I had suggested (in bold including the preceding comma):

    Dear Mr Doe

    Thank you for your emails and for flagging the wording error that has appeared in your Online Will.

    We have sought advice from our internal legal team, who have suggested that you update the wording of your Will as follows:

    "My Wife, Jane Doe, if Jane survives me. If Jane Doe dies before attaining a vested interest in this gift, leaving a child or children living at the death of the survivor of me and my deceased beneficiary, then such a child or children will take and if more than one in equal shares the gift which their deceased parent would otherwise have received."

    You can edit the wording of your Will in Adobe PDF to reflect the above change.

    We are also working to ensuring that this problem is resolved in future – so thank you again for flagging the problem.

    Kind regards

    Quite an admission I thought, and really off that they asked me to make the edit which requires a PDF editor that most people wouldn't have. What about others that have the original wording? Does it make their wills contestable or invalid? They haven't said anything about correcting the wording for others, and based on them asking me to make my own edits I'm thinking they just intend to sweep it under the carpet.

    I will respond to them with my concerns and probably elect for a refund and go elsewhere. What say you all?

    • Horacio on 05/08/2022 - 11:16

      Hah, Ozbargainers prevail!

      Good grief, I hadn't realised this was a paid service. I assumed they were providing the text as a public service to take some load off the supreme court. In that case yes that's pathetic to ask you to edit it yourself, I'd get a refund.

      BTW here's a free pdf editor - https://pdf.wondershare.com/ - free version enables editing pdfs and inserts a watermark when saving an edited file, BUT the trick is to simply print to pdf - same result as saving and no watermark.

  • AndyC1 on 04/08/2022 - 16:53

    Are you a member of a club?

    • thwarted on 04/08/2022 - 17:24

      RACV. Why?

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