Failing to Dot the I’s and Cross the T’s: What Happens When There is No Will?

It is hoped that when people decide to draft a Will, they will have taken the necessary legal advice and be very clear on what they need to do to create a valid document. However, there are some occasions when an important step in the process is missed, which can cause problems when attempting to honour the wishes of an individual who has passed away.

It was recently reported that a failure to observe the legal requirements for a valid Will is causing a considerable amount of upset. A couple who had broken up following a three year marriage and difficult separation had attempted to move on with their separate lives. However, a failure by the gentlemen concerned to draft a Will before his sudden death has exposed his estate to a claim by his estranged wife – despite the fact that both parties had already split their assets and had entered into new relationships with other people. The late gentleman’s estranged wife had hoped to remarry, and had provided signed divorce papers to him. However, he had failed to sign these, or leave any Will detailing his intentions for his property. As a result, both parties were still legally married, thereby granting the estranged wife to an interest in her late husband’s estate.

The lack of a Will when someone passes away can cause significant problems, particularly for surviving family members attempting to honour the wishes of their deceased loved one. Here we look at the rules that apply when someone dies without a Will, and point out some of the ways to avoid such a situation.

What happens if I don’t write a Will?

It is important to remember that a legally valid Will is a detailed account of your wishes for how your property is to be distributed amongst your surviving family members when you pass away. If you die without a Will, then because you have not left any detail on what your wishes would be, your property will have to be distributed according to a different set of rules.

The rules for when there is no Will relevant to an individual’s estate, are known as the rules of ‘intestacy’.  When this happens, your property will be distributed according to a pre-established formula. Exactly how much of your estate will go to a particular family member will depend on the circumstances.
While this may appear logical, it is important to keep in mind that not all relationships end well.  Married couples may feel the need to separate from each other, but never decide to formalise their separation via a divorce. If this happens, and you have not drafted a Will, then your estranged spouse will be, by law, entitled to your estate.

The situation becomes slightly more complicated if you have separated from your spouse (but not divorced), and have children with another person. In that case, your spouse will be entitled to a legacy payment from your estate, your personal property, and one half of the remaining intestate estate. Your children from your new relationship will be entitled to the remainder of your estate.

This can have consequences for your new partner, who will not be given any legal entitlement to your estate when you pass away, unless he or she can make a costly claim for further provision from your estate under the family provision sections of the Succession Act.

The fact of the matter is that where you do not have a Will, or more unfortunately, you do not have a legally valid Will, the law will break up your estate according to a formula that will not reflect your individual wishes. This can cause a great deal of stress and anxiety among family members, and can in certain instances, result in costly and often avoidable legal battles over your estate.

What can I do to avoid this?

Few people would relish the task of having to prepare for a time when they are no longer alive.  However, there are a few simple steps that you can take to avoid the need for legal battles amongst family members over their entitlement to your property after you die. One of the best ways to plan for the future, is to have a legally valid Will drafted.

What do I need to do to create a valid Will?

In order to create a Will you need to think carefully about what you want to be done with your property when you pass away. Once you compile a catalogue of your property – investments, personal property, cars etc – and decide what you would like to happen to your property when you die, here are some of the things you need to do:

1. You must express in writing what you want to happen to your property when you pass away.  This should be done in as clear language as possible, to avoid any ambiguity;  
2. You must be able to show to any court, should the need arise, that you have understood the terms of any Will that is drafted. This will normally be done by your signing the document; and
3. There must be additional evidence that you personally have signed the document: your signature must be witnessed by two other people who must also sign the Will.

hile these steps may seem logical, a significant number of people are unfamiliar with their significance as legal requirements for a Will to be valid. It is important that you seek the advice of a solicitor that has experience in drafting a Will: they will be able to ensure that it is written with the necessary clarity, and that all of the legal requirements are satisfied.

At Szabo & Associates, we are specialists in the law governing Wills, Trusts and Probate. We understand that you may be very anxious about planning for a time when you are no longer here, and that you may be worried for your family. Our job is to help address these concerns, and to assist you in creating a Will and Estate plan that accurately reflects your wishes. If you are interested in drafting a Will, or perhaps have some questions about what is involved, please contact us. Call us on (02) 9281-5088 or fill in the contact form to the right of this page. We look forward to hearing from you.