Problems with Wills & Estates

The first half of this week’s article could be titled “Make (Or Update) Your Will”. One of the major problems that people encounter with their Will is that either they have not got around to making it, or they made it so long ago, it is no longer relevant to their situation.

A change in your circumstances is a good time to make or update your Will.  No one wants usually to think about what will happen when they die, but there are situations when forward planning and getting everything in place will be vital to the welfare of those loved ones you leave behind. As an example if you have young children do you want to have a say in who looks after them should you die? If you do have a Will you can ensure that your guardianship wishes are followed in the event of your death.

We recommend regularly reviewing your Will, generally every five years, especially if your situation changes.  You may have made a Will years ago but not looked at it since, and it may no longer reflect your current wishes.

You should consider whether any of the following are relevant for you, as they may present an occasion when you need to make a new Will or update your current one:

• The birth of a child;
• Getting married or entering into a civil union;
• Separating or divorcing from a partner or spouse;
• Buying or selling property;
• Setting up a new business;
• Overseas travel (especially if this will be for an extended period of time).

A Will is a very important document as it gives legal effect to your wishes and intentions in providing for your loved ones.  However unless it is carefully drafted, properly signed, and appropriately witnessed it will have no legal effect. It is a very important document so the requirements are very technical.

If you would like to update your Will, or if you do not have one, see your legal advisor about getting your affairs in order.

A further problem with an estate recently came to light following the earthquakes. The Executor of an estate had allowed the insurance policy on a house owned by the estate to expire. The house was subsequently damaged in an earthquake. The earthquake damage caused the house’s value to drop by over $200,000. The executor was found liable to pay $205,000 to remedy the damage.

It was held that there was an obvious risk of the house being damaged, as another earthquake had occurred in the same area just one month before the insurance policy expired.

Unfortunately, the Executor’s failure to insure was simply an oversight, and he did not have a defence for his actions, so he was held liable to pay for the damage to the property. As the Executor of an estate you must make sure that the estate’s assets, particularly property, are appropriately insured at all times.  If not, you may be held liable for any damage that occurs while the property is uninsured.

If you are an Executor and have concerns about how to carry out your responsibilities, including insuring estate assets, see your lawyer for advice.