Does your will go far enough?

Making a Will is a time specific exercise and can only take into account your circumstances at the time of making the Will. Having said this, it is also valid to try to consider likely scenarios that may occur immediately or in the medium to long term as well.

In other words, whilst it is important to prepare a Will on the basis of what might happen if (heaven forbid!) the cyou died tomorrow, it is also equally important to also consider likely scenarios that may happen in the future, since hopefully the Will is not going to be needed for many years hence.

Plus, you may not ever get the opportunity to update your Will in a few (or more) years’ time. Your circumstances might materially change so that the existing Will is no longer appropriate, but then due to unforeseen death or an event causing incapacity, you may never get the chance to update your Will to take into account any changes in circumstances.

Now, it is a well known fact that most people don’t make taking care of their estate planning a priority in life. A survey of 2,011 Australians reported by finder.com.au in October 2018 found that 52% of Australian adults – equivalent to 9.9 million people – don’t even have a Will in place. That’s pretty bad.

But perhaps a more frightening (and unknown) statistic is how many Australians have an out of date Will? In our experience many people consider getting their Will done a once in a lifetime, “set and forget” experience. Something along the lines of, “Thank goodness that’s done! Now I don’t have to worry about that ever again”. This is definitely not the case!

For instance, most people would not know that getting married automatically revokes their Will. In which case, a “statutory order” prescribed by legislation will determine who gets their hard earned assets when they die. This may or may not be in line with the wishes of the deceased – and is much less likely to be so in the case of “blended families” where there are children of previous relationships in the picture.

However, in many instances, having an out of date Will can be much worse than having no Will at all! For instance, take a husband and wife couple who had their Wills done several years after they got married, at which time they had three small children. The lawyer they went to just gave them the standard “everything to each other, then to the kids equally” Will.

On the face of it that seems to be fine. But hang on – what happens if:

•    The day after making their Wills, that couple then hopped on a plane with their children and were happily flying towards their holiday destination – but the plane never makes it, and there are no survivors. Their Wills did not foresee this scenario, meaning that they have effectively died intestate. What happens to their assets? The prescribed statutory order now comes into play – which may or may not benefit the persons who they would have intended.

•    Or, let’s say 30 years have since passed. The husband has since passed away, but the wife is still alive. Each of her children have now produced several grandchildren. Unfortunately one of the children met with an untimely demise – but at least they are survived by their own children. Then the wife dies. Under her Will, the children get everything equally. However, only two of the three children have survived her. Her Will does not mention grandchildren (since the children were only little when the Will was drawn). This will mean that only the two surviving children will inherit all their parents’ assets in equal shares between them – and the offspring of their deceased sibling will miss out altogether. In most cases this would not have been the desired outcome – in our experience most parents would have wanted the offspring of their deceased child to take that child’s inheritance in their place.

Of course, this is just one simple example of what can go seriously wrong if your Will does not go far enough. Where your circumstances are more complex, especially in “blended family” situations, or where one or more of the client’s intended beneficiaries are vulnerable or have special needs, the importance of obtaining expert, considered and appropriate advice becomes paramount.

Therefore it is so important that you make an appointment with a lawyer who is not just an “order taker” and who will give you a Will that simply sets out what you told the lawyer you wanted, without the benefit of any advice or without the lawyer having asked you those “hard questions” (such as what happens of one or more of your children don’t survive you? What if none of your intended beneficiaries survive you?).

Our associate solicitor partners have many years’ experience in both simple and sophisticated estate planning and superannuation strategies and are well-versed in all aspects of tax effective and asset protective estate planning.

They are well placed to assist you by giving you expert and considered estate planning advice and recommendations, and creating the legal documents to ensure that they will be properly implemented when the time comes. Speak to us to learn more about your options

https://www.supercentral.com.au/smsf-news/910/does-your-client-s-will-go-far-enough