Each year thousands of people sit down and create their wills, detailing how they want their hard-earned money and assets divided up between loved ones.
Although it’s great fun to think hard about one’s own mortality, a will is the best way to ensure an estate is disbursed with minimum legal, financial and emotional hassle at what’s already a fraught time for your nearest and dearest.
However, with reports of wills being overturned in court and money allocated to someone the benefactor clearly intended to disinherit, questions have been raised about the point of a having a will in the first place.
The issue was thrust into the spotlight in early November after a Sydney man won $75,000 from his deceased mother’s estate despite he and his wife being categorically written out of her will for abandoning her during a lengthy battle with illness, news.com.au reported.
The woman’s husband, who died in 2012, made a similar statement in his will, declaring that neither he nor his wife wanted their youngest son to benefit from their estate following the family falling-out, but the NSW Supreme Court overturned her will and ordered the man’s brother pay out the “modest” family provision order from the $1.1 million estate.
This ruling and others have raised questions about the legal strength of wills, given they can be overturned by the court, with some Starts at 60 readers expressing concerns that their wills “aren’t worth the paper they’re written on” if their clearly expressed wishes can be overruled.
But Brian Herd, an inheritance law specialist and partner at CRH Law, says the few cases that hit the headlines shouldn’t lull anyone into thinking it was not worth bothering with a will, because there were likely to be far greater complications with the dispersal of an estate if no will was in place.
If you die without a will in place, the law of intestacy is evoked and your belongings are distributed among your next of kin, which means you have no control over how your estate is divvied up and who inherits your assets, he noted. How this distribution is made differs in each state and territory.
“The law says in Queensland that the first $150,00 of your estate and the household chattels go to your spouse and the rest is shared between your spouse and your children,” Herd told Starts at 60 by way of example.
“This means that your spouse will only get a bit and will have to share the rest with the children. That can lead to disastrous results for a spouse who could end up being the part-owner of her own home with the rest of her children – not good for family relations.”
Herd said the while it was not possible to create a will that was completely impervious to legal challenge, there were ways to reduce the chance of this occurring because a person received nothing or felt they hadn’t received enough.
Herd said one of the easiest ways to reduce a challenger’s chance of success was to compile a document called a Statement of Wishes that set out the benefactor’s reasoning on bequests, explaining, for example, why someone seemingly obvious was not on the list of inheritors. The statement can be used in court to explain a person’s wishes after they have died.
Another suggestion was to put as much money as possible into a superannuation fund or family trust to reduce the size of a personal estate, and thus the arguments between inheritors that may ensue.
Super rules allow the owner of a super balance to make a ‘binding nomination’ in which they name who should benefit from the super fund balance in the event of the owner’s death. A binding nomination leaves the fund trustee with no discretion over how the funds are distributed, and is considered separately from any will.
Another ploy to reduce the possibility of a will being challenged is to allocate the person you wish to effectively disinherit only a token amount, in order to make clear that you have not accidentally left them out of the will, but rather intentionally left them only a small sum.
Above all, Herd said seeking specific legal advice was key to ensuring your will was as watertight as possible. “See a lawyer so they can tell you what they think of your wishes, whether your will would be challenged and what you could do to reduce that prospect,” he said.
Even if you aren’t concerned about your money ending up in the wrong hands, Herd said creating a will was incredibly important.
“Think about whether you would like to give specific things to specific people and why,” he suggested. “Then who you would like to give the rest of your estate amongst the many potential candidates including spouses, children, grandchildren, friends, charities – the world is your oyster as they say.”
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