Does your client's Will go far enough?

Making a Will is a time specific exercise and can only take into account the client’s circumstances at the time of making the Will. Having said this, it is also valid to try to consider likely scenarios that may occur immediately or in the medium to long term as well, and to discuss these with the client.

In other words, whilst it is important to prepare a Will on the basis of what might happen if (heaven forbid!) the client died tomorrow, it is also (and we would daresay, equally) important to also consider likely scenarios that may happen in the future, since hopefully the Will is not going to be needed for many years hence.

Plus (and here’s the kicker), the client actually may not ever get the opportunity to update their Will in a few (or more) years’ time. The client’s circumstances might materially change so that the existing Will is no longer appropriate, but then due to their unforeseen death or an event causing their incapacity they never get the chance to update their Will to take into account the changes in circumstances.

Now, it is a well known fact that most people don’t make taking care of their estate planning a priority in life. A survey of 2,011 Australians reported by finder.com.au in October 2018 found that 52% of Australian adults – equivalent to 9.9 million people – don’t even have a Will in place. That’s pretty bad.

But perhaps a more frightening (and unknown) statistic is how many Australians have an out of date Will? In our experience many people consider getting their Will done a once in a lifetime, “set and forget” experience. Something along the lines of, “Thank goodness that’s done! Now I don’t have to worry about that ever again”. This is definitely not the case!

For instance, most people would not know that getting married automatically revokes their Will. In which case, a “statutory order” prescribed by legislation will determine who gets their hard earned assets when they die. This may or may not be in line with the wishes of the deceased – and is much less likely to be so in the case of “blended families” where there are children of previous relationships in the picture.

However, in many instances, having an out of date Will can be much worse than having no Will at all! For instance, take a husband and wife couple who had their Wills done several years after they got married, at which time they had three small children. The lawyer they went to just gave them the standard “everything to each other, then to the kids equally” Will.

On the face of it that seems to be fine. But hang on – what happens if:

•    The day after making their Wills, that couple then hopped on a plane with their children and were happily flying towards their holiday destination – but the plane never makes it, and there are no survivors. Their Wills did not foresee this scenario, meaning that they have effectively died intestate. What happens to their assets? The prescribed statutory order now comes into play – which may or may not benefit the persons who they would have intended.

•    Or, let’s say 30 years have since passed. The husband has since passed away, but the wife is still alive. Each of her children have now produced several grandchildren. Unfortunately one of the children met with an untimely demise – but at least they are survived by their own children. Then the wife dies. Under her Will, the children get everything equally. However, only two of the three children have survived her. Her Will does not mention grandchildren (since the children were only little when the Will was drawn). This will mean that only the two surviving children will inherit all their parents’ assets in equal shares between them – and the offspring of their deceased sibling will miss out altogether. In most cases this would not have been the desired outcome – in our experience most parents would have wanted the offspring of their deceased child to take that child’s inheritance in their place.

Of course, this is just one simple example of what can go seriously wrong if your client’s Will does not go far enough. Where the client’s circumstances are more complex, especially in “blended family” situations, or where one or more of the client’s intended beneficiaries are vulnerable or have special needs, the importance of obtaining expert, considered and appropriate advice becomes paramount.

Therefore it is so important that your clients go to a lawyer who is not just an “order taker” and who gives them a Will that simply sets out what the client told the lawyer what they wanted, without the benefit of any advice or without the lawyer having asked them those “hard questions” (such as what happens of one or more of your children don’t survive you? What if none of your intended beneficiaries survive you?).

Our associates Townsends Lawyers have many years’ experience in both simple and sophisticated estate planning and superannuation strategies and are well-versed in all aspects of tax effective and asset protective estate planning. We are well placed to assist your clients by giving them expert and considered estate planning advice and recommendations, and creating the legal documents to ensure that they will be properly implemented when the time comes. In particular we can provide advice about the likely issues and scenarios that your clients in their specific circumstances may face, in order to try to “future proof” their Wills as far as is possible; to sensitively ask your clients what they would wish to happen if the unthinkable happens to them or their loved ones; and to proactively recommend and implement in the client’s documentation strategies to ensure that their estate planning needs and objectives are appropriately met.

For more information as to how we might assist your and your clients, please contact SUPERCentral on (02) 8296 6266 or visit www.supercentral.com.au .