Where there’s a will there’s a way

Elder law | Print Article

[Autumn 2011]

They say, ‘where there’s a will, there’s a way’. But, if there isn’t a Will, there isn’t a way to ensure your property is disposed of in accordance with your wishes when you die.

If a person dies without a Will (intestate) the rules under the Administration Act 1969 are imposed. These effectively leave everything to a person’s next of kin in a fixed order.

In a recent case the deceased’s ex-spouse was entitled to apply to be Administrator and receive the entire estate because their marriage was never dissolved. In the circumstances this was hardly what the deceased would have wished. The moral of that story: your Will be done!

For many of us, making a Will is something we’ll ‘get around to one day’ especially if we are young and fit. However, while the idea of death can seem unpalatable, we don’t know whether tomorrow will bring the inevitable. If we delay we could lose the opportunity to make a Will at all. So, seize the day, today!

Since Wills are such important documents, the law requires them to be made in a specified way. Accordingly you should get legal advice about how to make a Will that complies with the law. If you don’t comply with the law, your Will can be invalid. The cost of getting it wrong isn’t worth it.

Making a Will can be straightforward. However, there is legislation that affects the freedom of a will-maker, such as issues of relationship property, claims by close relatives and promises to make provision in return for services provided to you. It is important that you understand the effect of the law otherwise your wishes may be frustrated.

Do you know:

  • Entering a civil union or marriage revokes a Will unless it is made in contemplation of that event?
  • What a life interest is, and how this tool can be helpful if you are in a second relationship?
  • Who would have guardianship of your children if you passed away?
  • The effect of receiving an inheritance?

If any of these points raise questions for you, or you have put off making one of the most important documents in your lifetime, don’t delay it any longer. Also, if it has been over five years since you last reviewed your Will you should do so today.

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