Where there’s a Will
SBS aired a show on Insight in September called “Where There’s A Will”. I didn’t see it at the time, but a lot of people mentioned it to me. So I looked it up, and you can watch it here.
The program focused on Will disputes, although one researcher in the audience was firm to say that the majority of Wills aren’t disputed. But when they are, about 75% of disputes are successful. They are generally successful because the Court doesn’t actually decide the merits of the dispute, but the parties settle at mediation between themselves. This is still a successful dispute, and I wonder if many of those settlements are a commercial decision to end the dispute and reduce legal fees, rather than the claim having merit.
However, most Wills are not contested. Some in the audience on the program thought there was little point to doing a Will, because it wasn’t binding and would be contested anyway. That is a shortsighted view. There are very good reasons to have a Will, and now that the Victorian law has changed, it is more difficult for the Will to be contested so your wishes are more likely to be upheld.
Here are some good reasons to have a Will:
1. Have your say
The primary reason to have a Will is to make sure your hard-earned assets go to whom you want them to go. You will want certain people to benefit for your hard work, and if you don’t have a Will your assets are distributed in accordance with the intestacy rules of your State.
Take control.
2. Appoint a guardian for your children
In the SBS program, I was shocked that about 65% of parents with minor children don’t have Wills. If you don’t have a Will, you will not have a valid and binding guardian appointed. If something were to happen to you, you will want to establish who looks after your children. Don’t leave it up to your parents, in-laws and other relatives to decide – you should make the best decision for your children while you can.
3. Specify when someone inherits
As well as saying who your assets go to, you can say when those assets are inherited. The main example would be to children. You might not think your children will be responsible enough to receive their inheritance until they are in their mid-twenties, or even into their thirties. So you can specify this. If you don’t have a Will, your children will inherit at the age of eighteen.
You could make other gifts conditional on certain things happening first, or on particular circumstances existing.
4. Choose who has control
The role of the executor in your Will can be crucial, particularly if assets are held in trust, because your executor will generally be the trustee of that trust. They will need to be financially responsible people, and you need someone who is good at managing these affairs. If you don’t select an executor in your Will, then the person who has the best claim against your estate is the person who is entitled to manage your estate – often this is inappropriate. For example, if you are a single parent then your young children will have the best claim on your estate. Whilst they are minors, it is the other parent that is entitled to manage your estate – you may not want your ex spouse to be the trustee for your children’s inheritance.
5. Incur fewer costs
It’s like many other things in life – you get what you pay for. Prepare a good Will, and the fees are relatively cheap upfront, and will save you in the long run. It can cost thousands more to manage an estate where there is no Will, or where the Will is poorly drafted or invalid.
Do it right once, and save your family legal costs later.
6. Time
If you have a Will, the time to administer the estate can be dramatically reduced. Although it may still take a few weeks for the estate management to kick in, this is much more preferable to the months it can take if there is no Will, or if there are mistakes with the Will.
If you need advice on preparing a Will or want to organise a time to get your Will done, please contact us.
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