Is There a Will or Not?

It was recently reported in the Sydney Morning Herald that the family of the late cricket star Richie Benaud are embroiled in legal action over his estate (reported here). Mr Benaud's former wife, Marcia, and their adult son, Gregory, have raised a court action against his second wife, Daphne, over how the estate is to be distributed.

This case, which will return to the NSW Supreme Court on the 4th December 2015, is an example of a common instance – where surviving family members become, for one reason or another, embroiled in a legal battle over how the estate of a deceased loved one is to be distributed. It therefore highlights the importance of creating a valid and comprehensive Will, setting out how you wish your estate to be organised and distributed when you pass away.

If you wish to read about another case where an ex-wife made a successful claim for provision from her ex-husband’s estate, you will find a case our firm took to the Supreme Court in 2014 here.

At Szabo & Associates, Solicitors an increasing number of our clients seek guidance on why they need to create a Will and what consequences following from failing to do so. In this blog post, we review the law applicable to Wills and what happens when there is no Will to direct how an estate is to be distributed.

Why is writing a Will a big deal?

It is not uncommon for people to fail to see the need to draft a Will. Many believe that there is no real requirement for them to go to the trouble and inconvenience of actively having to create a written document, a Will, to record their wishes for how their property is to be inherited by their surviving family members when they pass away. There is a belief that somehow, their wishes will be already be known and will be able to be auctioned. Unfortunately, however, unless you take the step of recording your intentions in a legal document, there is no other way for your wishes to be given effect when you pass away.

Moreover, there is a mistaken belief that the organisation of your estate can be achieved by less costly or inconvenient means. It is important to understand that simply writing your wishes down in a letter is unlikely to be sufficient to allow for your intentions to be honoured when you are no longer here. A great deal of importance is attached to Wills and this is because, when properly drafted, they are deemed to be legal documents that have satisfied certain criteria, e.g. no evidence of anyone having interfered or manipulated your decision making, and that you have demonstrated your understanding of the consequences of your intentions recorded in a Will to a solicitor. A hand written letter that is discovered after your passing is not able to satisfy these criteria, and so may not be able to be relied upon as evidence of your final wishes.

What if I leave no direction for my family's inheritance?

The idea behind your writing a Will is that you will, when you pass away, have died 'testate', i.e. you have left legally valid guidance on how your properly should be allocated to certain members of your family and friends. If, however, you do not leave any Will behind when you pass away, you have not left any reliable indication of your intentions for your estate. In law, this kind of situation is described as 'intestacy'. When you die, your estate will then have to be organised according to a legal formula for dictates who will inherit your estate and how much will be allotted to a particular individual. In practice, the proportion of your estate that is allotted to one family member or another, in intestacy, will depend on your particular familial situation:

• • If you are survived by a husband/ wife but do not have any children, then they will be entitled to inherit all of your estate; or
• • If you pass away but are survived by a spouse and children, then both will be allotted a share of your property.

It is also important to keep in mind that many people have more than one relationship in the course of their lifetime. This can complicate matters if a previous relationship (which has not been terminated via divorce, but mere separation) has resulted in children: some proportion of your estate will have to be allotted to reflect the fact. The children from your current relationship will be able to inherit, but only from the reminder of your estate following payment to your former partner. The difficulty however is that your current partner will not be granted any entitlement to your property.

Deciding not to create a Will creates a significant level of risk when it comes to how your estate to be distributed when you pass away. There will be no way to tell how you would have wished your family to inherit your estate. This forces the law to operate in a way which is hoped to be fair to all parties but may in fact lead to your surviving family suffering a great deal of emotional strain while they attempt to grieve for their loss.

Can a Will really be that useful?

As was mentioned earlier, when properly created, a Will is a legal document that will give very clear direction as to how your estate is to be allocated amongst your surviving loved ones. Before you decide to speak to an advisor on creating one, you should take a little time to think about how your property should be organised when you pass away. You can then raise these points when it comes to drafting the terms of your Will, as well as ensuring that the legal criteria that need to be satisfied are met:

• The law will only respect the terms of a Will that are actually written down. Your conversations with an advisor on what could be the terms of your Will would not have any legal significance, so it is important that whatever you agree is put into the legal document; and
• It will be necessary for there to be evidence that you have understood the ramifications of the terms of your Will, e.g. who and how inheritance will be enjoyed by. Your signature on the finalised document will be indicative of this.

Many people think that the there is little to no need to worry about drafting a Will. This is simply not true. You will have collected a great deal of property in your life, much of which will likely be important to you. You should take steps to ensure that it is passed on to those who survive you and future generations. Moreover, you may wish to provide something specific for your family, which can be reflected in the terms of your Will.

Contact Szabo & Associates Solicitors 

The team at Szabo & Associates, Solicitors advise on all aspects of the law governing Wills in NSW. We will discuss your wishes, and take the necessary time and care to ensure that these are accurately reflected in the document itself. We pride ourselves on being friendly, and offering practical advice on how Wills can help to organise property and reduce the strain on families attempting to cope with losing a loved one. To find out more about how useful a Will can be, contact our team now.