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Preparing for the inevitable

11 Apr 2018

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By Janice Hughes, Director, Aspiring Law

Despite that age-old adage “there’s nothing surer than death and taxes”, as a species, we’re not that great at confronting one of life’s dead certainties: our own mortality.

Newsflash – notwithstanding some speedy cryogenics breakthrough, we’re all going to shuffle off this mortal coil one day. Even our most hardy avoidant, denial mechanisms, including skirting around the very real need to not only make a proper Will, but also keep it current, are no antidote to that reality.

To die “intestate” – legal speak for “without a valid will” – can be a harsh and onerous, albeit unintended, legacy to lumber loved ones with once you’re gone. I’ve seen the upheaval and distress caused more times than I care to remember.

Having helped many hundreds of clients prepare and update their Wills over the years, I can say, with total conviction, the process is likely far simpler than, and not anywhere near as expensive as, you might fear. And the peace of mind from finally taking action is well worth the effort. By leaving a proper, well-drafted Will you’ll be helping spare those closest to you unnecessary – and often significant – delays, stress and costs.

So, where to start …

Just as no two people are the same, neither are any two Wills. Depending on your age and stage, family dynamics and assets, the end result may differ but, generally though, the same key considerations apply. First and foremost, who will administer your will as your executor? Second, if you have dependent children, how will they be provided for both financially and, especially, if they are left without a living parent, care-wise? Who will be their guardian? Third, who do you want your assets to go to?Don’t forget, though, adult children and other living relatives may be able to lay claim to your assets, so any special circumstances and considerations need to be documented and factored in. The law expects a certain treatment of all parties and that is where proper advice is invaluable.

If you needed further incentive to take the leap and get your Will drawn up or updated, here’s a little food for thought: no valid Will equals your assets being divided as per the law’s default provisions. Funnily enough, I don’t recall many clients making a will wanting what the law dictates should happen if they die intestate. In short, the only way to avoid what you wouldn’t like is to ensure your wishes are properly documented, and tailored in line with your personal circumstances and responsibilities.

So, what would happen if you died tomorrow without a valid will? The answer depends on what family you leave. Where you have a spouse or partner and children, then your spouse or partner receives any personal chattels, the first $155,000 and a third of anything left after that. The children receive the remaining two thirds. Where there are no children, living parents are awarded one third of the assets, after the spouse or partner’s entitlement (personal chattels and $155,000 plus two thirds of the remaining) is paid. The estate would be distributed equally among the children, if there was no spouse or partner. Depending on which relatives you have, there are other set provisions if you don’t have a spouse or children. If you have no living descendants and no Will, then your worldly goods go to the Crown coffers.

Asserting your will

An obvious, but commonly overlooked, actuality is a Will is the one legal document you’ll have absolutely no ability to change, once it comes into force.

A common misconception is that, with a documented Will, whatever you say will go after your death. Not necessarily. A Will can be contested in some circumstances. That’s just one reason why it’s so imperative you work carefully through the issues specific to you and your loved ones, and ensure, as much as you can, that it’ll pass the legal litmus test if needs be.

A DIY Will kit might be better than nothing – or not. The do-it-yourself approach can fit part of the bill – actually documenting your wishes – but it doesn’t come with the all-important personalised advisory component. Even if you use a Will kit or draft something completely from scratch yourself, it’s a good idea to at least run it by your lawyer to ensure there aren’t any fishhooks that a layperson wouldn’t necessarily be expected to pick up. If you’re opting to go it alone purely as a cost-saving measure, it’s worth bearing in mind that lawyers usually charge a nominal fee for preparing a Will. Before deciding which route to go, call your lawyer and ask for a quote or estimate of their fee and what’s involved.

All’s not lost

Before 2007, all was pretty black and white when it came to executing a Will; the interpretation was largely quite literal, and if an aspect wasn’t documented in a valid Will, or was documented incorrectly, then it was difficult to fix it. That changed with the Wills Act 2007, the effects of which have gained increasing traction during recent years when parties have turned to the Courts.

While it used to be, for example, some or all of a Will would likely have been thrown out on its ear if it didn’t follow the absolute letter of the law, contained clerical errors or had ambiguities, this law relaxed things a little. Nowadays, Courts have far more power to consider wishes documented less formally, and to correct or clarify mistakes and discrepancies.

While the Wills Act 2007 certainly means things are less rigid, it’s not one to be hanging your loved ones’ hat on. Even when everything goes to plan in executing a Will, the uninitiated tend to be taken aback at just how long it takes to work through all of the prescribed formalities. But where there is a Will, there is a way – and the more robust and current the Will, the clearer, quicker and less costly that way will likely be.

Last updated 11 April 2018

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