Wills

Should you have a Will?

For many people the thought of making a will conjures up feelings of mortality and the notion that not making a Will, will somehow put off the inevitable. Alas, this is not so.

Your Will can be one of the most important documents that you make during your lifetime and if you do not have a Will then there is no guarantee that what you would like to happen with your estate will happen and the decision not to make a Will can cause hardship to those you leave behind.

It is never too early to make a Will and if your circumstances change then the The can be updated.

We can assist you in formulating a Will appropriate to your present circumstances and on the balance of probabilities to cater for changes in those circumstances in the future.

For example, even though you do not have grandchildren at the present time there is no reason why you should not make a provision for the arrival of grandchildren in the future. This will allow you to state that should any child of yours die before you do leaving children in existence and then those children, your grandchildren, will get a share that the child who has died would have had.

On the balance of probabilities you will love your grandchildren and it would only be in rare circumstances that you would wish to alter that provision in the future. But having that clause ensures the progression of your estate through your bloodline.

Can I use a “do it yourself” Will kit?

The law relating to Wills has been modified and changed since 1066 and an incorrectly drafted Will can cause situations to arise that were not only not intended but can cause distress, ill will and sometimes a financial impact on your estate. For example, for younger families it is not good drafting practice to list your children by name. If you do then you then close that group of beneficiaries i.e. your children. If you then have another child then unless you change your Will then that child will be excluded from taking a share of your estate.

Other mistakes can be made inadvertently when leaving particular items to a particular beneficiary and the particular item is no longer in existence but has been replaced by another.

For example if in the do-it-yourself will Grandad leaves his Holden motor car to his grandson Johnny and the time of Grandad’s death Grandad owns a Ford then Johnny will miss out on the car that was clearly intended to be left to him.

We do not recommend that you make your own wills.

Burial or cremation?

David Story says “it is my view that directions in a Will as to the method of disposal of your body are not a safe inclusion. There is no property in a body and in addition it has been my experience over many years that it is not common practice here in Australia to consult the Will as soon as a person has died. More likely than not the funeral will be held and the body disposed of. If there is a contrary direction in the Will as to method of disposal then this can cause embarrassment as only one method of disposal of body is reversible. I have wondered over the years why it was that 25 and 30 years ago experienced lawyers would include in their clients Wills clauses relating to disposal of body when they knew that such a clause is not binding on the executor and that there could be embarrassing results if the will was not consulted. I have formed the opinion that back then our community was not as mobile as it is now and people were more influenced by their faith and that directions as to burial or cremation was a declaration of their denomination. (This is a totally unscientific conclusion but it is the best that I can do to explain why experienced lawyers would include a clause that was really of no substance).”

We recommend that you inform your family and friends of what your preference is and if you have a Funeral Plan advise them of the details.

Guardianship of infants

Including a guardianship clause in your Will is only a reflection of your preference. You do not own your children. Guardianship clauses can be included and would be a useful guide for a Court or Tribunal to reach a conclusion as to who should be appointed as the Guardian. David Story says “Many years ago I had such a clause in my Will but decided to remove it as I felt that by nominating the particular person I had named and if he or she would not able to undertake the task of looking after infant children then I would give others the excuse not to put their hand up to do so. So I took the clause out”

If you wish to have a guardianship clause inserted in your Will then you should ensure that you consult fully with the person or persons that you propose to appoint to ensure that they have the financial and other capacity to accept the appointment and enquire of them as to what change in their circumstances would make it difficult for them to accept.

Do I have to list all of my assets?

Generally you will refer, in your Will, to your estate as “all my estate both real and personal of whatsoever nature and wheresoever situate”. This catchall description allows the fact that over a lifetime you will acquire assets and dispose of assets. Unless you are leaving specific items to specific people then we do not recommend a listing of assets of the estate in the Will as an intestacy may occur unless there is a residuary clause which deals with all other assets not listed in the Will. Of course, if you wish to leave a particular item to a particular beneficiary, for example family heirlooms, then they should be listed and the identity of the person to whom they are to be given should be clearly and accurately stated and if the gifts are of particular value whether monetary or sentimental then thought should be given as to who shall receive them in the event that the beneficiary to whom they were left has predeceased you.

Blended families

When two people marry each other each having previously been divorced, separated or widowed with each having children and they wish to make Wills to distribute their respective estates between both families then difficulties can arise if care is not taken in drafting the Will and exploring the individual circumstances of each case.

For example some couples may buy real estate together and if they do not nominate to be noted on the title as “tenants in common” rather than “joint tenants” then no matter what they put in their respective Wills the Wills may be of little effect as, if they are nominated as “joint tenants”, the survivor of them will be entitled to the property irrespective of what the Will says.

Another problem that potentially may arise is that if one of the partners dies then what is there to stop the other one from changing his or her Will to then read to exclude the other persons children? This can occur not because there is a breach of faith or trust but as a result of failing mental health and, sometimes, outside influences. We recommend that there should be a Contract to make a Will made between each of the parties, that any real estate in which they reside own be converted from a joint tenancy to a tenancy in common (if necessary) and a life interest be given to the surviving partner to enable he or she to live in the house for as long as he or she is capable of and willing to do so.

Effect of marriage and divorce on Wills

If someone has made a Will and then subsequently marries or remarries the Will is revoked (cancelled) unless the Will is worded in a particular way. However, any gifts to your spouse will not be affected, but all other gifts you wish to make to other persons will be cancelled.

Example: if John makes his Will on 1 September 2013 leaving everything to Mary and then marries Mary on 31st of October 2015 his Will will survive. However, if he has left Mary nothing at all, then his entire Will will be revoked. If he has left a portion to Mary and the balance of his estate to others, then the gift to Mary will survive, but the gifts to others will not, and will be distributed in accordance with government legislation.

On the other hand divorce does not automatically revoke a Will but it does revoke (cancel) any gift to the former husband or wife and also cancels the appointment of the former husband or wife as executor or trustee unless directed otherwise in the Will.

Can I appoint a solicitor to be my Executor?

Yes you can. Over the years I have been appointed by several people to be their Executor. The reasons for this are varied. Sometimes a person has no next of kin to be appointed or else they may have concerns that if children were appointed then there could be a falling out amongst them. The appointment of a solicitor, particularly one who knows the family and family dynamics well, can be a safe way of avoiding problems.

However, if you wish to appoint your solicitor to be Executor of the Will then you should have a provision in the Will that provides that the solicitor may charge his or her usual professional fees for acting on behalf of the Estate but will not be entitled to charge a commission. Executors are allowed to apply to the Court to seek the awarding of a commission of up to 5% of the value of the Estate. In some States and Territories, the Executor can be awarded 2% without having to apply to the Court but in the Territory an application must be made to the Court. It would not be fair to the Estate for a solicitor to charge professional costs and a commission. Therefore it is my advise to include a clause suggested above.