Your Testamentary Wishes

When making a Will it can be difficult to predict every scenario that might affect its application. However, the following example is one reason why you should consider “back-up” beneficiaries when preparing your Will…

A man who was appointed as the Executor of his sister’s estate contacted his deceased sister’s lawyer to arrange the administration of her estate.  Although the sister had been married and had a son, both her husband and son had predeceased her.  She did not get around to making a new Will following their deaths. 

She had surviving grandchildren, and the brother expected that the process would be straight-forward as he assumed they would surely be the beneficiaries of her estate.

However, this was not the case. Her Will was made long before she had grandchildren, and she had not thought this far ahead.  The brother was shocked to learn that despite having a Will in place, his sister was deemed to have essentially died “intestate”.  This was because she had left the whole of her estate to her husband, or if he did not survive her, to her son (both of whom had already passed away).

The Will did not contain a “gift over” clause to provide that on the death of her husband and her only child, that her estate should be left to her grandchildren, if she had any, or some other “back-up” beneficiaries. 

Accordingly, instead of applying to the Court for Probate for his sister’s Will (which is a fairly straight-forward process), the woman’s brother was required to apply to the Court for Letters of Administration.

This is a more complicated and expensive process which requires additional documentation and evidence to be supplied to the Court.  His sister’s estate was distributed to family members in accordance with The Administration Act, which as it happened in these circumstances did mean that the estate was left to the grandchildren, but it was a much more time-consuming and expensive process. 

Does your Will allow for changes in your circumstances?

To avoid the above situation, in this case, a simple “gift over” clause provides security against a gift failing and the Will-maker becoming intestate by way of unforeseen circumstances, such as the earlier death of beneficiaries.  

A “gift over” clause may also be applied to specific gifts for chattels you wish to give to your loved ones, or even an organisation.  Should that loved one predecease you or your chosen organisation is wound up, is there an alternative recipient you would want to leave these chattels or personal possessions to?

It is important that your Will contains clauses to allow for some changes in your family, or to the circumstances of your friends.  We recommend reviewing your Will at least every five years to consider any changes in circumstances that might arise as it is difficult (if not impossible) to provide for every possible scenario that may come about over a long period of time. 

Therese Greenlees
Registered Legal Executive
Wellington