If you die without a Will, no-one knows who you wanted to give your estate to. Your assets will then be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished. Dying intestate can result in your surviving spouse, family and friends suffering unnecessary financial hardship and emotional stress...
Even though there are a lot of "do-it-yourself" kits around, please BE VERY CAREFUL when you use one. Whilst you may think that you've set out exactly what you want to happen after you're gone, its not always that simple. This is where the problems arise. You may state something in your will that seems clear to you, but its interpretation by the Law may be totally different. Also, you may have inadvertently left someone out of your will. Remember, you won't be around to ask what you really meant!
We can give you considered advice about your situation, and guidance as to how to communicate your wishes in the will. We can also advise about the legal ramifications of what you intend to do, and suggest ways around some of the more common problems.
We also ascribe to the "K.I.S" (Keep It Simple) proposition, and avoid any unnecessary complicated legal wording where plain English will be suitable.
It is advisable to regularly review your Will as your circumstances change, examples of changes are, Marriage, Separation or divorce ,the executor is unable to handle the responsibility or has died, a beneficiary having died the value of legacies changing over time, or retirement.
Power of Attorney and Guardianship
You may want to consider whether it is necessary to enter into an Enduring Power of Attorney and /or an Enduring Guardianship arrangement. Both these documents have the effect of allowing another person to make decisions on your behalf.
You must make this appointment whilst you have the mental ability to do so – it's too late if you become mentally incapacitated.
An enduring guardianshipis about personal, health and lifestyle decision-making, but an enduring power of attorney is about financial and legal decision-making. It must be certified by a solicitor so that the attorney continues to be valid even after you lose mental capacity.
Living Will or Advance Directive
You may have signed a document called an "Advance Directive" (also called a "Living Will").
An enduring guardianship or power of attorney is not the same as an advance directive.
An advance directive simply sets out your wishes about future medical treatment and the like if you lose the capacity to make these decisions for yourself. They need to be regularly updated.
Even if you have filled out an advance directive, you still need to appoint an enduring guardian and an enduring power of attorney.
Challenging a Will
The Family Provision Act 1982 (now the Succession Act) started in 1983 and applies to people dying on or after that date.
The Act corrects unfair treatment of people who had received no proper provision in a will. An "eligible person" can apply for provision out of an estate whether or not there was a will, and whether or not they were mentioned in a will.
Those eligible to apply under the Act include:
- The husband or wife; or a defacto
- A child of the deceased person
- A former wife or husband
- A person who was, at any time, wholly or partly dependent upon the deceased and who was, at any time, a member of a household of which the deceased was a member
- A grandchild of the deceased person who was, at any particular time, wholly or partly dependent upon the deceased
You need to consider the implications of the Act when drawing your will, or indeed to see if you yourself may make a claim on an estate from which you have been unfairly left out.