A recent survey found that approximately 52% of Australians do not have a current Will. Just to be clear, that is 9.9 million people that do not have this vital legal document! So why not? Well, it turns out: 

 

  • 34% have put it in the “too hard basket” – dangerous 
  • 14% think they don’t have enough assets yet – not true 
  • 4% said they don’t even want one – in the words of Liam Neeson….Good Luck! 

 

Let’s take a look at some recent case law in Queensland, specifically in circumstances where a person has died without updating their Will or even worse… didn’t have a Will at all! 

The recent case of Nichol v Nichol and Anor [2017] QSC 220 – is a perfect example as to why you need a Will. In this matter the deceased did not have a will.  Claims against the estate were made by his widow and also his brother and nephew.  Eventually the Court accepted that an unsent text message found on the deceased’s phone was accepted as evidence of his intentions to leave almost everything to his brother and nephew.   

 The deceased’s true intentions were obviously unknown and due to the absence of a Will the result was a long and expensive Court battle between family members that could have been avoided.   

 Now you have decided you need to prepare / update your Will, the next question is when is the right time to do this? Many of us don’t actually know the answer to this question. There are a number of events that could spark the right occasion to update or create a Will.  However, if any of the following events have happened to you, it is time to consider an update: 

   1. Marriage 

Most people aren’t aware that upon marriage, your Will actually revokes unless there is a “contemplation of marriage clause has been included”. If you don’t have a Will after marriage, it is a good idea to make one to include your spouse and any step-children. 

  2. Separation or Divorce 

 Divorce will automatically cancel the bequest made to your ex-spouse under your will. However, what you may not realise is that if you separate from a de-facto relationship, unless you make or update your Will to say otherwise, your ex-partner will still be entitled to benefit from your estate. 

   3. Children 

 Upon the birth of a child, you may want to name your children in your Will.  Your will should also be amended to appoint a guardian to care for your children in the event that you are unable to. 

  4. Grandchildren 

 As your family grows and changes, there may be new family members that you wish to make specific provision for in your will.   

  5. Change of Heart 

 Family circumstances can change.  You may have a change of heart about who would be the most appropriate Executor, or who should benefit from your estate.  You may wish to consider updating your Will to include a provision for a charity.   

  6. A Person Named in the Will has Died 

 Whether it be your Executor or a beneficiary, it is important that you update your Will to ensure that a role initially allocated to a person who is now deceased is replaced appropriately. 

  7. Your Assets have Changed Significantly  

It is common for people’s financial circumstances to change over time.  You may want to include someone new into your Will or make some alternate arrangements to suit your financial situation. The value of any bequest will change over time.  You may wish to change a bequest or share it among more beneficiaries.   

Is it time to update your Will? contact us today to discuss your current estate affairs and we will do what we do best – assist you with Brilliant Thinking and better outcomes.