We do “simple Wills” all day every day. Husband and wife, adult children, first marriage, everyone healthy and well. A simple Will provides for the husband and wife to be executors of each other’s Will, with the children as alternatives when they are over 18. Everything to each other, then to children, then to grandchildren.
But firstly we have to establish that it is that “simple”. Amongst other things, consideration needs to be given to:
Second marriage / relationship
Where there has been a divorce in the family complications arise. If there is a new relationship where there are children from two previous marriages, then the Will needs to be carefully crafted.
Family business
If Mum and Dad run a successful business and a child or children works in that business but others don’t, more complications arise necessitating a review of the Company structure, an updated Shareholders Agreement (if there is one to update!) and consideration of a Testamentary Trust.
Superannuation
Many people overlook the fact that superannuation often sits outside the Will where the Trustee of a superannuation policy has the discretion to determine where the superannuation money goes after death. It can quite often not be covered by the Will.
The Family Provision Act
Have you had anyone live in your household that became financially dependent upon you for any time? They might be able to bring an application for a share of your estate. Is an equal share to children appropriate when one has special needs? This circumstance might necessitate a separate fund to provide for a child with special needs.
A child has “gone walkabout” and you decide not to leave that child a share of your estate
The Family Provision Act allows that child to apply for a share if the child can show financial need. A carefully crafted Will may achieve the desired outcome.
The Wills & Probate Administration Act
Many Wills are challenged on the grounds of the testator’s mental capacity to make the Will. Care needs to be taken at the time of preparation to ensure that the Will remains valid.
The Succession Act
This recently introduced Act covers many aspects of Will making, including Wills made overseas, the construction of Wills and what a Court might do in interpreting a Will.
Capital Gains Tax
Assets acquired post-1985 may incur capital gains tax if disposed of in administering an estate. A Testamentary Trust can help better manage this situation.
Same sex relationships
Our law is slowly adjusting to providing equality for same sex relationships but issues still have to be dealt with surrounding Centrelink entitlements, superannuation and the effect of property ownership when in the name of one partner only.
The cost
Often, there are many hours’ work involved in obtaining all the details and then analysing the situation before drafting the necessary Will. Because the Will and other documents are absolutely critical in ensuring that hard-earned assets do pass to loved ones in a reasonably tax-effective way, regrettably, the age of the “simple Will” has passed. Yes, you can still follow the radio ads and buy a Will Kit. We too can send you three pieces of paper with some instructions but no advice. The advice is what you pay for. The advice and experience is critical. We have the expertise. We have the related financial planners and tax advisers to ensure that your estate passes as you would want to inherit.
GEOFFREY M ROBERSON
Principal
Estate Planning and Wills
