Making a good will

31 Jul 2019

We’ve all read about high-profile family estate battles, like those that followed the deaths of mining magnate Lang Hancock and prominent businessman Richard Pratt. However, there are many other cases involving “ordinary” Australians that don’t get picked up by the media but which are equally emotionally and financially draining, potentially destructive and prolonged.

A person’s will is likely to be one of the most important documents they will make in their life. Having no will, or a poorly drafted will, can have serious financial and other consequences for those who are left behind. However, even with so much online information and do-it-yourself will kits available, we seem to still be getting it wrong. In fact, statistics from the Supreme Court point to an explosion in disputed wills in recent years, with a rise in litigation. So why is this?

It has been argued that this is due to the breakdown in family relationships and social changes that have seen the emergence of more blended families. Some cite the fact that grandparents and relatives are now more likely than ever to have the full-time care of children, and that more people are raising children who aren’t biologically related to them.

There is certainly evidence to suggest that the increase in remarriage and second or third families correlates with the growth in the number of family provision claims. However, there has also been an increase in the size of estates in line with increasing property values. People are also holding more wealth in superannuation, which may on death be paid into the estate but will often be paid directly to dependants. These are just some of the factors that have increased the complexity of estate planning and getting one’s affairs in order properly.

Most people would expect that a person making a will would provide for their spouse and any children who are young or dependent on them. There may, however, be other people who would be eligible to make a claim if the will does not adequately provide for them. This group includes adult children.

This can be even more complicated if people have re-partnered and have younger children or stepchildren as well. The problem is that parents who fail to properly provide for adult children run the serious risk of a legal challenge to their wills, which can be extremely costly and time consuming for their families.

There are ways people can ensure their wishes are respected and fulfilled. The best way to avoid problems is to give some thought to what they own, and who needs to be provided for, and make sure that they revise their will if circumstances change.

It is advisable to seek expert legal assistance in preparing a will. This is the surest way to avoid common pitfalls and to find out what the legal position is, in relation to each person’s specific circumstances.

Susan O’Rourke is the legal practitioner director of O’Rourke & Associates a family and estate law firm. The purpose of O’Rourke & Associates is to protect you, your children and your wealth and to ensure your wealth continues to benefit intended beneficiaries into the future. Susan provides advice on wills, testamentary trust wills, enduring power of attorney and enduring guardian documents to protect your wealth.

Call O’Rourke & Associates to arrange an appointment on (02) 9188 9679.