Simple Wills and Drop Bears
Camping for the uninitiated in Australia can be terrifying: the most venomous snakes in the world, man-eating crocodiles on our most serene beaches and, of course, the all-pervading threat of a drop bear…
…so, some will claim.
People should have a healthy fear of many things in the Australian bush, but (forgive me for being un-Australian for a moment) drop bears are not one of them. A koala with razor sharp fangs is of course a hoax, a lie, a bit of harmless fun.
The realm of wills and estates also has a mythological drop bear, but it’s not always harmless. It’s called the simple will.
“Simple will” is a phrase bandied about much like “would you like fries with that?” Its use implies that there are two types of wills; those that are simple and those that are not…
…so, some will claim.
Perhaps, more accurately, the true dichotomy is between comprehensive legal estate planning which is precisely in line with a client’s well-informed instructions and that which is not.
Legal estate planning is a process. A suitably qualified and experienced lawyer obtains detailed information and gives a great deal of advice, empowering a client to give wise and well-informed instructions. Preparing or modifying a will is just one aspect of estate planning.
Proper legal estate planning examines the risk profile of both the will-maker and the people they want to benefit from their will. It assesses the risk of disputes about the will-maker’s estate and strategise how to avoid them. Invariably, the discussion explores tax and social security considerations.
Rod makes an appointment to see his lawyer about a will. He has done some homework and researched types of wills on Google. He wants a simple will. Why wouldn’t he? As Rod tells his financial advisor, accountant, share broker and the CEO of his organisation, he’s not a complicated man. He likes to keep things simple.
Rod’s affairs look something like this:
- Rod (65) has been married to Trudy (35) for 10 years.
- They have 3-year-old twins, Sam & Luke.
- Rod also has 3 children with his first wife, Monica. They’re adults and don’t keep in touch with Rod.
- Rod has a self-managed super fund worth about $1.4million. (Rod and Trudy are the members and trustees).
- He is the sole director and shareholder of a corporation through which he operates his business. His business is worth about $3.2million.
- Rod also has an impressive collection of real estate properties, worth about $3million.
As Rod is detailing all of his assets and methods of ownership, he informs his lawyer that all he really wants is a simple will where Trudy gets everything. It should be brief. After all, he’s not leaving anything to Monica or the adult children he no longer sees.
A suitably qualified and experienced lawyer may indeed prepare a brief Will, but it will be very carefully drafted. The lawyer will also give Rod comprehensive advice about restructuring many of his affairs.
Why? Unless Rod takes steps to change the ownership of his assets, a proverbial simple will leaving everything to Trudy will be almost entirely unravelled. Rod’s intention will be largely irrelevant. Rod’s estate will be a large target for a claim by Rod’s adult children for provision from his estate.
As a Family Provision claim is a discretionary remedy, it may ultimately be the prerogative of a judge to decide, in a lengthy and expensive process, whether the children of his previous relationship are adequately provided for from Rod’s estate.
What looks like a simple will may by no means become a simple estate.
For Trudy’s sake, Rod decides that perhaps he should settle into the estate planning process with his solicitor and consider the advice in order to ultimately make his affairs as simple as possible.
Proper Estate Planning
Estate planning is a process. An essential element of estate planning is detailed advice being given to a client that is particular to the client as a result of a personalised interview process that empowers the client to give wise and well-informed instructions. In reality, there is no such thing as simple will.
Though the mention of drop bears is a bit of fun and I would be loath to kill off the hoax because essentially, it’s harmless. I’m not certain the phrase simple will should be viewed the same way.
Bryan Mitchell is an Accredited Specialist in Succession Law (Wills & Estates) Qld.
There are only 47 Accredited Specialists in Succession Law (Wills & Estates) in Queensland out of roughly 13, 000 lawyers, and Bryan Mitchell is one of them.
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