People tell me that lawyers are the worst. We tell everyone that they should all have a Will, but many of us don’t have one ourselves.
Well let me tell you this: I’ve got one.
Let me tell you something else: I’ve had people in my office who’ve been going to do a Will for ten years and never got around to it. Then suddenly something triggers them, they come in, they get it done, and you know what? They walk out the door as if they’ve just had a huge weight lifted off their shoulders.
We have all heard horror stories of the mess that’s been left behind when someone dies without a Will to guide people. We’ve all heard stories of families driven apart after their parents have died. Over money! It is incredibly sad. And it is so avoidable.
Is the Will properly signed?
Just last week I was reading a High Court decision that reminded me yet again why people should not be flippant about this. An old gentleman had died leaving three children and a couple of grand kids. He actually had a Will. He thought. And in this case everyone knew what he had wanted to say, and who he wanted to leave everything to. They were all still friends.
That wasn’t the problem. The problem was that his “will” wasn’t valid. It hadn’t been witnessed properly, and it hadn’t been dated. So simple, I know. But in spite of all this they had to get the Court to declare whether it was valid or not, otherwise they couldn’t obtain probate. And if the executor of the estate can’t get probate, he can’t access bank accounts, can’t sell property, can’t really do anything much at all.
So, however many months and however many thousand dollars later they got their court declaration and could finally start divvying up the old man’s estate.
Why would you put yourself through that?
All he had to do was sign a Will and do it properly. In this case it would have literally saved thousands of dollars and a lot of sleepless nights. After all, its bad enough when a loved one has died without having to tell the debt collector every second day that you’ve nearly got it sorted and will be able to pay the power bill soon. Because thats what it comes down to sometimes.
Does the Will look after the family?
Having a Will is one thing. But whats important is making sure it actually says what it is meant to. We had a situation once when a very rich, retired farmer died suddenly. He was with his newly wed, very much younger, third wife at the time – the mother of his brand new six month old baby.
Wife number two had died, no kids. Wife number one had gone her separate ways. But his only son from wife number one had been faithfully working on the family farm for over thirty years. Yet, when someone found the father’s Will, it had only recently been signed and it left everything to wife number three. Son number one was out in the cold. After over thirty years toil.
Claims against the Estate
This is where claims against the estate can go into overdrive. Clearly son number one would have a legitimate expectation of some sort of inheritance.
But without either the correct advice, or the correct mental state at the time of signing the new will, or simply a lack of thought, you can end up with a huge mess which has great potential to benefit the legal profession.
Wouldn’t it be better to just sort it out properly? In this case perhaps father could have considered the idea of a Family Trust early on, plus a Relationship Property Agreement with wife number three, at least until she had proven herself.
Is the Will current?
On the other side of the coin there have been many instances where the opposite has happened. Someone dies and their Will is the same one they signed twenty years ago when they were actually married to the person who, as of several years ago, now lives with the deceased’s former best friend. This can cause endless complications too.
Trigger Points
So every time there is a trigger point – a new relationship, the breakdown of an old one, a new baby, a death in the family, a new property, an inheritance or any other significant change – you MUST review your Will. And not just your Will. You should also have Enduring Powers of Attorney in place so that your loved ones can make decisions for you if you’re still here physically but no longer “compus mentus”. Its too late after the car crash.
Protecting your assets
There are of course other tools for protecting your assets and getting your affairs in order. I’ve mentioned them already. There are many uses for a Family Trust, and in any of the above situations a trust could have helped immeasurably, coupled with a clear Memorandum of Wishes to the trustees of the Trust, spelling out what you would want to happen if you’re gone.
Unless you have a Relationship Property Agreement in place between you and your partner you can’t really specify what is your property (maybe from an earlier relationship), what is your partner’s property, and what you own together. There used to be some sort of stigma with this type of agreement. Like one minute saying you love each other, and the next minute saying “sign here”. But now it is an accepted way of dealing with these matters.
So please, get your affairs in order. Don’t put it off any longer. We help people with this all the time. Please call 03 4500000 or email russell@queenstownlaw.co.nz
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