Wills

Sunday, September 10, 2017

Everybody has heard of a will. A lot of people would have had to deal with a will when somebody close to them has died.

But, not everybody has a will. Why? There are plenty of excuses for not making a will, such as “I have plenty of time to make a will” or “They are too expensive.”

Do I really need a will?

The short answer is yes.

A will is used to dispose of all of a person’s property after their death. It can be changed at any time (provided the person making the will has testamentary capacity).

The long answer: we recommend that every person has a will. If you make a will, you can ensure that your estate, which includes all of your property, including personal belongings and money, will be given to the person that you would like it to be given to.

If you die without a will, you will die ‘intestate’ and the intestacy laws, as outlined in the Succession Act 1981 (“the Act“), will govern how your property is distributed. People who could be entitled to your property include your:

  • Spouse (including de facto).
  • Children or grandchildren.
  • Parent/s.
  • Next of kin (i.e. brothers, sisters, grandparents, aunts, uncles and cousins).
  • The Crown.

This appears to be a pretty sensible list, but it can result in unintended consequences. Let’s take a look at a couple of real life examples that we have seen in the past few months at Quinn & Scattini.

In the first example, there was a 24 year old man who died suddenly. Let’s call him John. John did not have a spouse or any children. This means that all of his estate would go to his parents in accordance with the Act. This seems like a reasonable outcome until you find out that John’s mother died prior to John (and therefore could not inherit anything) and John had had no contact with his father since he was a toddler.

Because John died without a will, his property including a house, car and his bank accounts, would all go to his father who he did not know. If he had made a will prior to his death, he could have gifted his property to someone who was important to him, for example his sister.

In the second example, a young woman died without a will. Let’s call her Jill. Jill had been married, but had separated from her husband for over 10 years. They no longer had any contact but had never divorced. Jill passed away and she did not have any other spouse or any children. In accordance with the  Act, Jill’s entire estate would go to her husband (even though they had been separated for over 10 years). It is unlikely that Jill would have wanted her husband to get her whole estate.

In just these two examples, it can be seen that although the intestacy laws in the Act are very practical in who should get what if you died without a will, the individual circumstances of a case can mean that less desirable outcomes can be avoided.

A will isn’t just important for working out who your property should be gifted to. It can also cover issues such as:

  • Who will be the guardian of your children?
  • Do you have a preference for being buried or cremated?
  • Do you have any other funeral wishes?
  • Do you have a spouse, but you don’t want everything to go to them?
  • Should I update my will?

One common enquiry at Quinn & Scattini Lawyers is “Do I need to update my will?”

We recommend that you consider your will, and whether there are any changes you would like to make, at least once a year or if there are any significant changes in your circumstances.

For example, have you:

  • Purchased or sold property?
  • Been married or divorced?
  • Separated from your partner?
  • Had children?
  • Had grandchildren who you would like to provide for?
  • Disposed of property that you specifically gifted to somebody in your previous will?

You will not always need to update your will if there have been changes in your life. The provisions in your will might be wide enough to include, for example, not only your children who were born at the time you made your will, but also any children who were born after. This will depend on the clauses in your will.

Some common changes that will not require you to change your will include:

  • Change of address.
  • The death of a named beneficiary if your will already contains alternative provisions.

The cost of a professionally prepared will may ensure that your estate isn’t fought over in the future.

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