Wills and Wives Tales

Posted on Jun 4, 2020 by Terry Morgan

We have all of the heard of the various tales regarding a Last Will and Testament.


We have endeavoured to deal with a few of those wives tales hereunder to demonstrate the need to give careful consideration to the preparation of Estate Planning Documents including Last Will and Testament, Appointment of Enduring Guardian and Enduring Power of Attorney.


  1. “I loaned my child money 10 years ago which will be taken out of his or her share”.

In most cases this is incorrect. Any loan that’s made, in the absence of any written documentation, and sometimes even with written documentation, can only be recovered by commencing legal action within 6 years of the loan being made.


Accordingly, if you loaned your child a sum of money more than 6 years ago then that loan will be disregarded for the purpose of calculating your child’s share of your Estate.


  1. You only have to leave your child $1.00 (or $500.00 depending upon who is telling the story) and they cannot make a claim against your Estate.

Such a statement has not reflected the law for a period in excess of 100 years.


Failure to make adequate provision for a child would enable a child, pursuant to the terms of the Succession Act 2006 (NSW) (“the Act”) to make a claim against your Estate.


A child is a “eligible person” according to Section 57 of the Act and therefore has a statutory right to make a claim against your Estate if your child considers that you have not made adequate provision for that child in your Last Will and Testament. Any such claim must be made within 12 months after the date of your demise.


The making of a claim is subject to considerations which must be given to any such claim by the court in accordance with the terms of the Act.


  1. “I do not want my child to have a copy of my Will”.

Upon your demise Section 54 of the Act provides that certain persons, which would include your spouse, children and certain other persons have the right, to either inspect your Will or to obtain a copy of your Will.


Section 54 of the Act states that a person who has possession or control of your Will must allow one of the persons described in Section 54 to either inspect your Will or to be given copies of your Will.


  1. “The family knows what I want”.

If a Will provides that the Estate of a person is to be divided equally between certain person then the executor of the Will is compelled to divide the Estate in that manner.


This can obviously cause difficulty on a number of occasions if it is intended that certain possessions of a person who has passed away (such us jewellery for a lady and electrical goods for a man) are intended to be distributed to particular people.


It is far more preferable for your Will to make provision for the distribution of certain items to particular persons if that if your intention. Should you not make that particular provision there is no guarantee that the person you intend to benefit will receive the gifts that you intend to make.


  1. “My Estate has to be shared equally between my children”.

There is no provision at law that requires that your Estate be divided equally between your children.


In accordance with our comments under number 1 above care must be taken to ensure that if you decide to distribute your Estate to your children in unequal shares that adequate provision be made for each of your children so as to endeavour to avoid any claim being made pursuant to the terms of the Act.


The above comments are made so as to highlight the need to give careful consideration to the manner in which your Estate is to be dealt with in accordance with your Last Will and Testament and to ensure that your Last Will and Testament is prepared in such a manner so as to accurately reflect your wishes and to provide for those persons whom you intend to benefit from your Estate.