Why do you need a will? A case study
11 Feb 2019
- Wills & Estates
Most of us don’t know when we are going to die and often put off making a will. Facing one’s mortality can be confronting.
However, if you die without a will (intestate), it’s much more complicated for those that you leave behind. In this article, Snedden Hall & Gallop Associate, Gillian Hunter, describes a matter that our Wills & Estates team dealt with recently, and one that clearly demonstrates the importance of making a will. No matter how old – or young – you may be.
In 2018, we were approached by the brother of a young man who had passed away unexpectedly. The young man didn’t have a will.
The family initially believed that the deceased didn’t leave much in terms of an estate. He’d been living in government housing and was unemployed in the five years preceding his death.
We undertook extensive searches. These revealed that the deceased did, in fact, leave a sizable estate. His estate consisted predominantly of superannuation death benefits and life insurances. The death benefits that were ultimately payable to the estate were worth approximately $400,000.
Given the value of death benefits available, we needed to get a Grant of Letters of Administration (a ‘Grant’). This Grant is a prerequisite to the institutions agreeing to pay the death benefits to the estate.
Accordingly, we were instructed by the deceased’s brother to file an application seeking a Grant, on his behalf, in the ACT Supreme Court.
Who benefits from the estate where there is no will?
When someone dies without a will, the rules of intestacy apply in accordance with Schedule 6 of the Administration and Probate Act 1929. The intestacy provisions set a hierarchy of persons entitled to benefit from an intestate estate.
As the deceased didn’t have a spouse (or de facto spouse), or any children, his parents were entitled to equal shares of the estate on intestacy.
However, the deceased person was estranged from his mother in the decade before his death. His mother accepted from the start that her entitlement on intestacy was unlikely to have represented her son’s testamentary intentions. In other words, the family believed that, if the deceased had prepared a will, he wouldn’t have made provision for his mother.
What did we do?
We prepared a Deed of Family Arrangement to the effect that the deceased’s mother voluntarily relinquished her share on intestacy in favour of the deceased’s siblings.
Unlike his relationship with his mother, the deceased had had a very close relationship with his brother and sister.
Clearly, the outcome could have been different if the deceased’s mother hadn’t voluntarily renounced her share of the deceased’s estate on intestacy.
The take home message?
If the deceased had made a will, the family would have avoided the costs, delay, uncertainty and stress associated with the preparation of the deed and other aspects of the administration of the estate.
This case study demonstrates why every adult should prepare a will. Even if you are young, single, childless and don’t think you have assets that are worth gifting.