I have recently been quite surprised by the number of instances which have come to my attention where both elderly and young people have not made a will. An unexpected death can produce some quite disastrous results and in many cases people inherit substantial sums of money when, if the deceased had made a will they would have been left nothing or at most only a small bequest.
Consider the following: A member dies and had been predeceased by his wife and there are no children of the marriage. He has not been living in a de facto relationship after the death of his wife. His parents also died before him as have his 2 brothers. However, the 2 brothers have had children, all of whom have survived the deceased member. One brother has 4 adult sons and the other an adult daughter, none of whom are financially dependent on the deceased member.
In this case, the niece will inherit ½ of the estate and the 4 nephews 1/8 each. If the member had made a will then he may well have decided to leave ± of his estate to each of the niece and 4 nephews.
It should also be noted that if there are cousins of the deceased member who have survived him then even though they have been very close to the deceased, they do not have any entitlement to claim under the provisions of the Wills Probate and Administration Act.
I mentioned earlier that the deceased member had not been living in a de facto relationship after his wife had died. If he had been then his de facto wife would have been entitled to the whole of his estate to the total exclusion of the niece and 4 nephews.
What constitutes a de facto relationship entitling the survivor to the whole of the estate of the deceased member is a topic which is far too complicated to deal with fully in the available space and is now governed by the Property Relationships Act, a successor to the De-Facto Relationships Act. However, the established law has in the past held that the parties must have been living together as husband and wife on a bona fide domestic basis. In the case of Hamilton –v- Scarfe in 1988, the parties owned their own homes but the lady moved in with the gentleman at the beginning of the week but then moved out and resided in her own home on Thursday until the following weekend because he had his mates over every Thursday evening for cards. The Court held that they were not living together as husband and wife and the claim of the lady to the estate of her lover who died leaving the whole of his estate of $2.5 m to his only daughter failed.
On the other hand, the Courts have more recently held this year in Russell –v- Ouinton that even though the surviving lady lived part of the week at Marsfield near her place of work and the deceased lived at Avalon, they had been living in a de facto relationship at the time of his death and she had not been properly provided for in his will.
One can readily think of situations where men and women who normally live together for most of the week find that for quite understandable reasons or for the sake of some peace and stability live separately for a number of days each week. Quite often these arrangements have been going on for years particularly where both parties have stressful occupations. It seems difficult to argue that they are not really living together as man and wife and the temporary separations are a practical solution to keeping the couple together.
Hopefully, the above comments will convince you to consult a solicitor and make a will if you do not presently have one. I should also emphasise that your will should be regularly reviewed, particularly if your financial situation has changed significantly or your partner or some children have died. Likewise, if you have sold your home and moved to a retirement village. And don’t forget – if you have left a particular asset to a named beneficiary and then sold the asset eg. an investment property, then that bequest will fail in the absence of specific provision in your will covering the proceeds of sale.
One final suggestion: give one another an enduring power of attorney so that if one of you becomes incapacitated eg by a stroke then the other can act on your behalf.
Should you wish to consult my firm concerning a new will or a review of your existing will or to execute enduring powers of attorney we would be pleased to assist. We have available a form of questionnaire which can be forwarded to you upon request and if returned to us prior to a consultation, will significantly assist in providing prompt advice to you. Should you desire to take advantage of our services please telephone either John or Michael Fitzgerald on 9221 3733.