To will, or not to will – that is the question

March 19, 2020

Now, more than ever it is important to know what will happen when you pass away.

These are unprecedented times filled with uncertainty and fear. People are literally fighting in the streets and supermarkets over something as simple and common as a packet of toilet paper. People’s fear is driven by uncertainty, they arent sure what is going to happen and it is causing them to react and turn on one another.

When you or a loved one passes away, there are many decisions that need to be made and affairs that need to be settled. During these times, there is much uncertainty and hurt left in the air. This can add complexity, strain, and stress to those who are left grieving. To avoid panic, fighting, and the toilet paper effect from happening to your family. Give them the gift of certainty in a difficult time. You decide for them how to handle your passing and the unsettled affairs left to them in the wake of your life.

Family Grieving the loss of a loved one

When diminutive singer Prince wrote the lyrics to ‘When Doves Cry’, little did he realise that he’d be leaving plenty of people crying … and not just because of his premature death.

Prince is one of a long list of celebrities to have died without a will (known as intestate). Others include Aretha Franklin, Pablo Picasso, Jimi Hendrix, Kurt Cobain, and Tupac Shakur. What transpired was inevitable – intense fighting for the right to claim the inheritance.

No matter how much an inheritance is worth, money has the potential to make people behave in greedy and illogical ways. So it’s vital to get this piece of your life sorted out properly, with the right advice and guidance from professional specialist lawyers like those at CM Law.

This article will look at two case studies to explain the difference between making a will, and not.

Andrew, 78, former doctor

  • Andrew is a father of two adult children, grandfather of one, husband to Sherry and ex-husband to Diane. He dies after a long battle with a will in place. Everyone is devastated by his death. Although expected, it’s still a shock, and everyone is grieving.
  • His will is current and up-to-date. He has included his wife Sherry, his adult children, and grandchild. Ex-wife Diane has remarried and so she isn’t mentioned in the will. Everyone who is eligible is accounted for.
  • Andrew’s will is clear and all his wishes are set out in accordance with the law. He set out his funeral wishes, right down to the final song Staying Alive. He wanted people to smile as they left the chapel. This takes a load off everyone’s mind – no battling over hymns or ‘favourite’ songs. Such thorough preparation also avoids the stress of sorting out the administration of the will.
  • Andrew has control – he gets to choose who he wants to benefit after his death. For many people, this is important.

Upon someone’s death, the nominated executor steps in to sort things out, from finding the will, arranging the certificate from the NSW Registry of Births, Deaths and Marriages, ascertaining assets, debts and liabilities, paying bills like funeral costs and taxes … basically sorting everything out.

First and foremost, the stress is taken out of the situation for those left behind because the estate is distributed in accordance with the law. This is why it’s so important to have a will written by a specialist lawyer who knows all aspects of estate planning.

Peter, 41
Peter has been with his partner, Joseph, for 18 months. He dies unexpectedly on a tennis court, leaving behind his parents, a brother, and an estate worth $2 million. There’s no will.

Joseph has to work hard to prove he is eligible. Instead of having the time to grieve and process Peter’s death properly, he has to see lawyers and try to prove his eligibility as next of kin.

Under the rules, a domestic partnership is a relationship between Peter and someone else. In this situation, it would be normal to think that it’s Joseph. However, the relationship must meet certain rules – for example, that it’s a registered relationship, or a de facto relationship that has been in place for two years or more, or resulted in a child.

Joseph has to meet requirements, such as:

• The duration of the relationship
• Nature and extent of common residence
• Whether or not a sexual relationship exists
• Degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
• Ownership, use and acquisition of property
• Degree of mutual commitment to a shared life
• Care and support of children
• Performance of household duties
• Reputation and public aspects of the relationship.

Joseph, whose relationship is less than two years, faces a struggle to prove a domestic relationship. Let’s assume Joseph has his own source of income and lived in his own house because that worked for them. He has an uphill battle to prove his eligibility as a domestic partner. It’s a very difficult situation to leave your loved one in.

Technically, if Peter dies without a will, his estate will pass to eligible relatives. The Crown has the job of divvying up the estate amongst eligible people according to specific rules. Here’s the order of who can inherit an estate.
• Spouse
• Children
• Parents
• Brothers and sisters
• Grandparents
• Aunts and uncles
• Cousins.

It’s likely that, without proof that Joseph and Peter were domestic partners, the estate will be divided amongst his parents and brother – whether Peter liked them or not.

The parents, who never approved of Peter’s relationship with Joseph, decide upon the location of the funeral (church, which Peter opposed), burial (when Peter believed in cremation) … and claim the entire inheritance. The ensuing court battle erodes the estate, leaving very little to fight for.

Not everyone will do what Heath Ledger’s parents did.
When the famous actor died unexpectedly, his will was out-of-date and didn’t recognise his partner Michelle Williams or their daughter Matilda. The automatic beneficiaries were his parents – however, they made it clear that neither Michelle nor Matilda would lose out.

CM Law has specialists who will be on your side. Ask them for their help if you are thinking about your will and plans for your loved ones. Likewise, if you find yourself in a battle to prove your place in a will we are ready to fight for you.

Speak to a Lawyer
Complete confidentiality 100% guaranteed. Take a look at our privacy policy.