Make a Will and Review it Regularly

A person’s last Will is an important document but it should be revisited on a regular basis throughout your life. I have created a list below of things to think about when you start making your will:

  • Have you been divorced or separated? In some jurisdictions except where (a) a contrary intention appears in the will, or (b) there is other evidence establishing such an intention, divorce will revoke a will.
  • Have you married or started a new relationship? Unless a Will is made specifically in contemplation of an impending marriage an existing Will is automatically revoked by marriage
  • Have you or your beneficiaries had a new baby?
  • Have you bought or sold an asset such as an investment property?
  • Have you or any of your beneficiaries developed a health problem?
  • Have you or your beneficiaries had a business failure?
  • Have you gifted an asset or made a loan, to a family member?
  • If you own a business has, a partner has retired, or a new partner been admitted?
  • Have you or your beneficiaries had a business failure?
  • Have you started a SMSF (self-managed superannuation fund)?
  • Have you transferred a major asset owned by you to a self-managed superannuation fund?

Bernard Sullivan Smith died in August 2016 leaving a handwritten will dated 4 February 1966 nominating his wife, Joan as his executrix.

“I GIVE DEVISE AND BEQUEATH to my wife, Joan Florence Smith, of 14 Cumberland Street, Parramatta, all my real estate and personal property. In the event of my wife’s death, I leave all my real estate and personal property to be divided in equal shares between my brothers and sister, namely Henry Denson Smith, Maxwell Smith and Patricia Maude Smith, and my wife’s brother and sister, namely John Joseph Blinstroub, and Helen June Davies”.

Bernard’s wife Joan predeceased him by 2 years they had no children. The only beneficiary named in the will that didn’t predecease Bernard was his brother, Maxwell Smith. Only his sister Patricia had children Michele and Diane (“the nieces”).

In November 2016 Maxwell was granted administration (with the will annexed) of the estate. He commenced  proceedings for judicial advice in July 2017.

(1) whether the gift of residue under the will is a class gift and does not partially lapse, or whether it is a gift to five individuals and therefore partially lapses in respect of those who predeceased the testator; and

(2) if the residuary gift partially lapses, what persons and in what proportions are then entitled upon the partial intestacy. These reasons deal with each of these questions in turn.

However Maxwell died in August 2017. Probate of his will was granted to his wife and his executrix and sole beneficiary, Dawn Smith, in November 2017. As executrix of Maxwell’s estate she became the administrator of Bernard’s estate and sought the opinion, advice and direction of the Court on the following grounds whether the gift of residue under the will should be construed:

(1) as a class gift –  it operates so that the whole of residue goes to the member of the class who survived the testator.

; or

(2) as a gift to five individuals – the valid gifts will operate according to their terms, and the invalid gifts will pass upon intestacy.

Courts construe wills if possible, on a fair and reasonable construction to preserve, rather than destroy, a gift:  in this case the court held that Bernard did not make a class gift meaning that the gifts to each of the beneficiaries named in the will, other than Maxwell, lapse and the shares that would otherwise have passed to them are subject to a partial intestacy; that is, a partial intestacy as to 80% of the testator’s estate. Half to the estate of the Bernard’s brother Maxwell, and the other half will pass upon intestacy to his nieces, the daughters of his sister Patricia, in equal shares.

In this case Bernard created a handwritten Will some 50 years before he died. In the intervening period the person he named as executrix and all but one of his beneficiaries had died.

We have discussed before cases where the Court concluded that in an age where people outlay significant amounts on a regular basis to update their phones –a small outlay to correctly execute a Will to secure potential benefits for loved ones and dependants should be an elevated priority.

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