This year at University, I am studying the law of Wills, Succession Planning and Trusts, which is fascinating given how much of an integral part of financial planning these topics are. We work with our clients to make sure that they have Wills in place, but as we aren’t lawyers, we use the best of our common sense and experience with our clients to make sure that their wishes are achieved if they die.
I have learned a few things that I hadn’t thought through, but at the same time, there have been quite a few stories in the media about wills working or not working. I have provided links below to two recent articles from Diana Clement and Stuff that are worth reading, but here are some of the things that I have learned.
PLEASE NOTE: This is not legal advice, merely comments from a Financial Planner and Law Student.
- Joint Property
If you own property with your life partner as JOINT PROPERTY, this property becomes the other persons property when you die. It does not form part of your estate.
Generally, this has only arisen in court cases when there is a second relationship, and one of the partners wants to leave assets to their children from the first relationship. Even if you have a provision in your will to leave funds to those children, if all your assets are owned jointly, you will have no assets to go to the children. Therefore, the children will not get your wish, as there are no funds to fund the gift.
Similarly, if you own your assets jointly and you have agreed with your life partner that they will use the assets for the rest of their life, and then the assets will go to your children when your life partner dies (assuming you have died first), there is no legal obligation for this to happen. If the assets are jointly owned, when you die, the assets become their property, and they have no obligation (or legal responsibility) to do what you have agreed or discussed.
As the Diana Clement article notes ‘Second relationships usually own property as tenants in common, not as joint property’. Tenants in common property means that you each own half the asset. Therefore, when you die, the property is yours to give instructions on, it doesn’t automatically belong to the other person.
- No Valid Will
The Stuff article documents a sad situation where children ended up with no assets because their mothers partner ‘lived up large’ when she died. Their mother had drawn up a will but never signed it. While there is room for unsigned wills to be be validated through the courts, this costs money and takes time.
We strongly encourage all our clients to ensure that they have up to date wills and that they seek independent good quality legal advice when drawing up your will.
Diana goes through a range of cases that have been before the courts, noting that as property values increase, the values of estates are higher, which gives people more incentive to contest wills.
If you have any uncertainty about how well your will will work, I strongly recommend that you read this article. Here are some of the areas under which estates are regularly tested according to the article.
- The Family Protection Act. A family member such as spouse, de facto partner, child, grandchild or stepchild can contest a will if they believe the moral obligation to look after dependants has not been met, says Broad.
- Testamentary promises. A testamentary promise is a reward for services rendered. Perhaps you gave up your job to care for a neighbour and were promised something in the will. Broad says he sees this one often where a friend of the family, for example, is told that they'll be "looked after" in the will and then is left a paltry few thousand dollars. The bar is higher for this one than many people think, says Broad. Driving an elderly neighbour to church a couple of times doesn't make you entitled to something in the will. Siblings of the deceased or nieces and nephews who can't claim under the Family Protection Act sometimes "concoct a claim" under the Testamentary Promises Act, says Broad.
- Widows and widowers. The Property (Relationships) Act is fertile ground for estate lawyers, says Broad, especially where there is a second marriage. "With second marriages they won't hold their property jointly." So on the death of one partner the other gets a life interest. A not uncommon legal move is for a spouse who has been left a life interest in the other half's will to make a claim that they need to be better provided for. "They can do that and they do," he says. The surviving spouse or de facto partner might claim that a life interest stops them, for example, spending the capital if needed. What's more, says Broad, if the wife (or husband) gets a life interest in the property, they have to continue to liaise with the children, "but quite often there is a lot of animosity there". By appealing to the court to be better provided for, the wife no longer needs to be beholden to the children. "It is difficult to be fair to everyone and people become suspicious," says Kelly.
- Lack of testamentary capacity. Wills can be challenged, says Broad, where it is believed that the will maker had a lack of "testamentary capacity". That means the deceased didn't have the capacity to make a will. An example cited by Vicki Ammundsen of Vicki Ammundsen Trust Law is that of Fitzgibbons v Fitzmaurice. A suicide note addressed to the deceased's executor removed his only sister from the will and left all his assets to the Salvation Army. The court was not satisfied he had testamentary capacity when the note was written and overturned it, says Ammundsen.
- Undue influence. This often arises when an elderly or disabled person is put under undue influence or fraud is carried out to get the will changed. Stories of this abound. Broad cites the case of a son who had taken the mother to the lawyer and convinced her to leave everything to him. Sometimes a family member will take advantage of a relative's dementia and have them sign a new will. Broad cites a case in which one of four children got the whole estate by doing this and his siblings weren't happy. "He was there telling mum to sign the will and took her into a lawyer's office. It is very hard for the elderly parents to say 'no' in that case."
- Implied trusts. Broad sees cases where there is no formal trust in place but someone argues the money was being held in a "common law constructive trust" by the deceased on behalf of others.
- Drafting errors. As Ammundsen points out, will-makers and their advisers are human and sometimes make mistakes. She cites an example in which an estate was split among eight beneficiaries, but the percentages left to each of them didn't add up to 100. Section 31 of the Wills Act allows for errors such as this to be fixed, she says. That requires an application to the High Court, so isn't cheap.
- Informal or draft wills. Your will doesn't need to be written down. If a lawyer, for example, has notes and hasn't even drawn the will up before a person dies, it could still be valid and replace previous wills, says Broad. If there is evidence that your intention was to give it all to the SPCA, that could well be what happens, assuming of course a claim isn't brought under the other laws above such as the Family Protection Act and the Relationships (Property) Act.
- Creditors. If someone is owed money, he or she can apply to the court under common law for that debt to be repaid if the executor refuses to pay. "You are not attacking the clauses in the will, but you are saying, I am entitled to some of the before it gets divided up," says Broad.
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By Carey Church