Jim’s partner Nora never got around to making a Will.  She had children from an earlier relationship. Nora had told Jim that when she was younger there was just always something more important to focus on and a million things to pay for, so she didn’t prioritise getting a Will.

Nora was also worried about what to do about her children from a previous relationship and whether she should leave everything to Jim absolutely, or leave something to her children as well as Jim, and how to do that. It all seemed just too much!

Once they had finally got to their retirement Nora had forgotten all about needing to make a Will. She passed away peacefully at home surrounded by family, at the age of 88.

The family discovered Nora had no Will, and was told by Jim’s lawyer that the first $155,000 would go to Jim, with the rest of her estate being split 1/3 to Jim and 2/3 to be shared between Jim and Nora’s children and Nora’s children from her previous relationship.

Jim was stressed and concerned as he and Nora had kept all their assets separate due to the trouble Nora had had with her first relationship, so Nora’s estate included half of the family home and $300,000 in her separate bank account.

Your Will is an important document to put in place if you want your estate to be split in a particular way instead of in accordance with the Administration Act 1969.

What is a Will? A Will is a usually a document made by an individual that:

1. sets out what is to happen with their property after they die and/or appoints a testamentary guardian for their children under the age of 18; and
2. is signed by the Will-maker and two independent witnesses in the physical presence of each other.

We often find that people are quite concerned about what to put in their Will and struggle with their instructions, or put off signing their Will as they want to make sure they get it “right”.

We can assist you with creating your Will and trying to future proof it as much as possible.

At the end of the day you do not know what your circumstances or  relationships will be down the track, and because of this it recommended that people look at their Wills every five years or when there is a change in their circumstances (such as having children, getting married or divorced, moving country etc.) as it is unlikely that your Will will be able to cover all future scenarios.  It is important to remember that it does not have to as you can change it anytime you like.

Your Will is not set in stone – you can update it

The great thing about Wills is that it is very easy to make a new one, as long as you have mental capacity.  If your current one does not work for you anymore you can make a new Will with similar or completely different instructions, and as long as your latest Will makes it clear that it revokes any previous Will, that latest Will will be the only one that matters.

For example, if you have stipulated a gift of money to a friend in your Will, and a couple of years later you decide you no longer wish to make that gift to your friend, you have the full freedom to change your Will entirely to remove the gift and reflect your new wishes.

Future proofing your Will

You can also try to cover off potential future changes in your Will.

In order to future-proof your Will, you may think about including backup executors and backup beneficiaries for gifts you have made, or for shares you have given to people of the residue (balance) of your estate.

A backup executor would only act if your preferred executor is unable to, and a backup beneficiary will only be entitled to receive the gift or share of the residue if the original recipient has predeceased you (and if you specified they would only inherit if they survived you).

Using the above example, if you wish to make a gift of money to your friend in your Will, you may choose to add a backup beneficiary to this gift in the event your friend predeceases you. The backup beneficiary could possibly be any children your friend leaves behind, or to anyone else of your choosing.

The same can be done with any beneficiaries who are receiving the residue of your estate. The most common example for backup beneficiaries is specifying that if a child predeceases you, leaving children of their own, then those children will receive their parent’s share.

Having backup beneficiaries ensures that there are contingencies in place if your original beneficiaries are unable to succeed to their share or gift. This also means you do not have to continuously change your Will to include new beneficiaries each time an original beneficiary passes away.

Life can also get complicated

Life can also be very complicated these days. It is not uncommon for people to have children from different relationships. Your children from a previous relationship can miss out if you leave everything to your current partner absolutely as step-parents do not have an obligation to acknowledge in their Wills adult step-children who are not financially dependent on them.

In blended family situations it may be appropriate for you and your current partner to consider granting each other life-interests in your Wills or making mutual Wills to make sure your respective children from previous relationships do not miss out when the last of the two of you passes.

For more information on mutual Wills and mirror Wills please see this article here

Wills are very important documents, and it certainly pays to take legal advice to ensure your Will adequately reflects your wishes.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.