No-one enjoys contemplating their own death. So we put the thought of it to the back of our minds and Wills are filed under ‘Future me problems’. Yet, life can be messy and unexpected.
Dowson Turco Lawyers (DTL) deals with many cases where a Will could have avoided high emotions, costly legal disputes and anguish for loved ones.
For example, recently one of DTL’s clients, let’s call him John*, was in a registered de facto relationship with Ben* for several years.
Ben’s family was fully supportive of the relationship and John shared a close relationship with them. Tragically, Ben suffered long-term mental health issue and he took his own life.
Ben died intestate, that is, he died without leaving a Will.
Initially, the close relationship between John and Ben’s family continued, but things turned sour when John confided that Ben had been deeply unhappy and that this had caused problems for the couple leading up to his death. Ben’s family began to blame John for the death of their beloved son, brother, nephew and cousin.
Succession law in New South Wales generally dictates that the spouse of a deceased person, who dies without a Will, gets all or the lion’s share of their partner’s estate (there are other factors that may influence this such as children or previous relationships). In John’s case, Ben’s family falsely claimed the de facto relationship had ended shortly before Ben’s death and because of this separation, they argued John should get next to nothing from Ben’s estate. This appeared to be an opportunistic move motivated by money and misplaced blame.
The family went to great lengths when attempting take control of Ben’s estate. They lodged an objection in court to John’s appointment as administrator of Ben’s estate. They then placed a caveat over the whole of the estate. The ensuing fight was gloves off, right down to arguing over who should control Ben’s ashes, it was nasty.
Fortunately, DTL cut through the bull**** to protect not only John’s legal interests but the memory, validity and integrity of his relationship with Ben. For John, the cost of Ben’s intestacy goes beyond the dollar value to include the destruction of John’s good relationship with Ben’s family and the unnecessary prolongment of heart-ache from losing one’s life-partner.
The fact is, the existence of a Will would have greatly narrowed the scope for such a painful legal battle between those left grieving. No-one can be certain how family may act when grieving. When you think about it, we don’t have Wills drafted for our own benefit but rather for the benefit of the ones we leave behind.
Our Wills are our last word in life and they aim to ensure our loved ones are looked after in a way that truly reflects the strength and nature of our relationships, beyond what legislation assumes exists. This may go further than simply giving to our loved ones, as we may further seek to exclude those who we don’t want to benefit from our estate.
So, what should you be thinking about when it comes to planning your Will?
(1) The first and perhaps the most obvious issue is to think of all of your personal belongings (your stuff). Who do you want to have your personal stuff? When should they get it? Who don’t you want to have your stuff and why?
(2) The second issue to consider if you have children is how old are they and dependent on their ages, who do you trust to bring them up until they are no longer minors.
(3) If you have children, you will also need to consider when you want them to receive their inheritance?
(4) If you have pets who are dependent on you at the time of your death, who will you nominate to look after them after your death.
(5) You should carefully consider who will get what from your estate and whether you will give the gift outright or whether you want to gift a life estate or a right to occupy.
(6) You need to carefully consider who you want to oversee your estate and make sure that all your stuff goes to where you want it to as stated in your Will. As with beneficiaries, there should be alternative executors to take the place of the whoever is nominated first, in the event the first nominated person can no longer do it or they cannot do it for whatever reason.
(7) After the obvious beneficiary/children/executor considerations come the rarely thought of, but nevertheless important questions. Decisions like:
a. Do you want to be buried or cremated, and what do you want to happen to your body or remains?
b. Would you like to donate your organs?
c. Would you like to make your body available for medical research?
d. Do you want a memorial service that is religious or not?
e. Is there anything else you consider important to you?
(8) Finally, it is important not to ‘love and leave’ your Will. Your Will is a ‘snapshot in time’, a record of your current circumstances which you may outgrow. Your Will needs to evolve as your life does, to ensure that when it is needed, it accurately reflects your wishes. DTL, recommends updating your Will every 3 to 5 years or so years, or when there is a material change to your life i.e. kids, inheritance, acquiring assets or growth in asset value or changes in your personal circumstances.
You may not believe that your family would or could ever fight over your estate but the truth is that conflict can arise in unexpected places, especially in times of stress and grief. Squaring your Will away is a matter of putting in a little effort now to prevent a lot of effort and heartache in the future for your loved ones.
Grace Wilkie is a Wills and Estates lawyer at Dowson Turco Lawyers and Stacey Dowson is the firm’s managing partner.