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She’ll be right… or will she?

A common Australian colloquial term… “she’ll be right, mate” is what is generally said or least thought when a person, especially middle aged or dare say young, provides when giving consideration to their estate planning.

But really… will she?

Of course one can escape the thought by knowing that they won’t be around to see things wrap up and really what kind of havoc could a modest estate in a typical family environment really cause?!

Alot! I guess is the answer and most of us will still bury our heads in the sand.

So what is the status quo on a Will you might ask? Well, the current situation provides that each person has a duty to make provision for certain persons, similar to that of our next of kin or dependants and if provision is not adequately made then the Court will make assumptions about who should have been considered when dividing up the net assets.

If you are yet to make a Will then you will be said to die intestate and the laws of intestacy under the Succession Act 2006 (NSW) will operate. The laws of intestacy provide that a ‘spouse’ has first dibs, followed by an ex-spouse, children and so on.

However, time and time again family dynamics don’t always fall into these categories and someone may feel or believe they were entitled to be provided for (and were not provided for or were not provided enough). A common example is a relative who is not in close proximity that intestacy laws would even consider them at all… such as a nephew, carer, daughter-in-law etc. Another example is a child who was financially provided for in their lifetime, for example a business start-up, house deposit, wedding payment etc and has therefore received their ‘portion’ whilst their parent(s) was alive and now his/her siblings consider that they have been inadequately provided for when gifted an equal share in the estate.

How does intestacy laws allow for these situations? They don’t! A Will is needed!

Despite an obligation to leave one’s share in their estate to obvious family members and dependants, just about anyone is at liberty to challenge a Will. Of course there must be proof of a moral right that the deceased had a duty to provide for this person and, if proved, their chances of receiving something in the estate are quite high.

It’s better to leave your estate to the few having considered the many, than to disregard a few and be challenged by any…

This brings about another issue that weighs heavily of many and that is the meaning of fair. Many times, beneficiaries raise the point that the Will-maker did not divide their estate fairly. In a recent Estate that gained publicity concerning the late cricket legend Richie Benaud a feud sparked between his widow and his first wife and son over not being adequately provided for. The first wife and son asked the Court to make provision for “maintenance and advancement in life” as the two were living in public housing. Although the matter settled before trial, it is important to note that “fair” may mean a division of assets that takes into account a beneficiary’s living situation.

Many of these issues can be simply resolved by properly mapping out ones estate and having a duly qualified solicitor put together a water-tight Will.

A good will provides for those we love and are in need and also considers potential claims that could be made in the estate whether apparent or not.

It might seem cost effective or quicker to grab a post-office will-kit but without adequate legal advice such savings on Wills can lead to expensive issues later down the track including costly Supreme Court litigation to challenge your Will and/or involve claims for family provision. All of these expenses are borne out of the estate itself and very quickly dwindle down the net value of the estate in the end.

The last thing you want to do is to leave any ambiguities or at worst, a mess, for your loved ones after you die but the reality is contested Wills and claims on estates are becoming far too common.

At Prospect Property & Estate Lawyers we urge you to meet with us and map out your potential estate and make a water tight Will.

Take us up on our unique mobile solicitor service and contact us today to make a booking.

“Do the thing you fear and the death of fear is certain”- Mark Twain.

By Lisa Hanna

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