A MATTER OF TRUST
IT IS IMPORTANT TO HAVE AN UPTO-DATE WILL
Wills are vital as you head towards retirement
Squabbling siblings, parents cutting children out of their wills, bitter second marriage inheritance fights – Greg Kelly has pretty much seen it all in his 38-year career as a lawyer.
A specialist in wills, estates and trust law, Greg says dying without a will can lead to a messy, time-consuming and expensive process for family members.
Despite that, only about half of us have wills.
Life changes such as marriage, divorce, the death of a family member and the birth of children or grandchildren are often what prompts many people to have a will drawn up.
Procrastination – just never “getting around to it” – is the most common excuse for not having one, but if a person dies without a will, the courts step in, distributing any assets to a strict formula that may be the antithesis of the wishes of the deceased.
“If you don’t have a will and you die intestate, the process is more complicated and more expensive, and the estate gets administered according to a regime you may not really want,” says Greg.
However, having a will doesn’t always mean things will go smoothly either, he adds.
“There might be arguments among the family about whether the deceased should be buried or cremated, or where they are to be buried, or how they want the funeral service run.
“It can be very helpful if you have a will that says I want to be buried or I want to be cremated and have my ashes scattered wherever, or I appoint so-and-so to do this. Otherwise, you can have a free-for-all.”
While we like to think families will work amicably together when a loved one has died, that’s not always the case.
“People think their kids are never going to fight,” says Greg, “But that’s often misplaced. It’s very common. There might be three or four kids, they’ve all got equal rights, they might all have very different views about the how funeral should be conducted, and there’s arguments about the chattels and memorabilia.
“You can say in a will that you want your rings to go to a particular daughter or, ‘I want the old armchair to go to that son.’ If there isn’t a will, people will come up with all sorts of things. Dad said this, Mum said that. A will is a useful way to sort those things out.”
The increasing numbers of people living in de facto relationships or remarrying – and the subsequent tangle of blended families – bring their own problems. Late-life love affairs can be a minefield when it comes to dividing an estate and there are competing claims over a property.
Greg has plenty of war stories. “You can get horrendous fights… it’s amazing sometimes how much people dislike each other.
“I had a case recently where a woman separated from her first husband. They had two children from their marriage. She took the family home, paid off his debts and a few years later a bloke moved in with her as a boarder. He started paying rent; a relationship formed over time.
“She became sick and died, and he claimed he was in a de facto relationship with her and should therefore get half the house. The children from her first marriage, who were her beneficiaries under the will, were really upset. They argued it was the family home, their parents owned it so why should he get half the house, but under the law, he had a reasonable claim to half the property.
“We managed to settle the case, but nobody was particularly happy with the outcome. It created a lot of unpleasantness.”
Greg’s advice to clients is to keep their wills as simple as possible. He also recommends there be at least two executors – the person or people who are responsible for seeing the instructions in your will are carried out.
If possible, one should be a non-beneficiary (they will not receive anything under the terms of the will) and, ideally, the executors should be able to work together.
You can write your own will – around four percent of us do – but while it may be a cheaper option, lawyers generally advise against it because it’s easy to make simple mistakes that can later makes things extremely complicated if anyone decides to contest the will.
There is no fixed price for writing a will. A lawyer will charge you for the time that they spend advising you and writing it, but if it is a very basic will, they may charge you a set fee.
You can also draw up a will through the Public Trust, which has been in the business of estate administration for 140 years. The Public Trust also offers a service called Executor Assist, which can take care of some or all of the work required of executors.
Wills should be reviewed and updated after any significant life changes, such as having a baby, beginning or ending or a relationship, buying or selling a home or starting or closing a business.
‘ We managed to settle the case, but nobody was particularly happy with the outcome’