If There Is A Will…

I knew a woman who had died suddenly and was survived by a 2 year old adopted child and her husband. The woman had substantial assets but died without making a Will. Her husband will be entitled to those assets once he is granted approval by the Supreme Court but here are the issues that the court would never know:

  1. The woman may have expressed a wish that she wanted to leave all her assets for her child, but had never stated it in writing.
  1. There may have been marital problems with her husband including domestic violence which she had probably confided to someone, but there was no other evidence.
  1. The husband may have neglected and resented the adopted child prior to her death but denies any such conflict now.

Do you think her assets will be used for the benefit of her child as per the wishes of the woman?  Do you think she should have made a Will and named her child, the sole beneficiary of her assets? Does this scenario rings any bells?

Often married couples separate and even settle their property by mutual agreements but if one spouse dies before the divorce is finalised it gives the opportunity to the surviving  spouse to make a claim for the deceased’s assets. Making a Will is necessary not only to give your assets to those you wish but also to protect the assets against any undue claims.

Some have the idea: “I don’t want to make a Will because, I do not want my relatives to benefit from my death”. Unfortunately, this can occur and here is the legal process that allows it to happen: Once a person dies, their assets can be distributed among the beneficiaries in two ways. If there is a Will, a Probate is granted by the Supreme Court to the Executor of the Will upon application. The executors then carry out the testamentary wishes of the deceased (the testator). If there is no Will, the person is said to have died Intestate. In that event, the interested parties such as the spouse, children or relatives seek a letter of administration from the Supreme Court establishing their claim in the Estate.

People often do not realise the importance of the Will because:

  1. They have only a house and a bank account which they do not consider significant assets.
  2. They have all their assets overseas and are unclear about the law in these countries.
  3. Properties are jointly held with their spouse.
  4. They fear their assets will be disbursed if they make a Will.

Consider this. Mr and Mrs Citizen are 75 and 70 and one of them could die leaving all the assets to the surviving spouse. If the surviving spouse has no Will or becomes incompetent to make a Will, the problems highlighted above may occur.

Wills are testamentary wishes of a person that only comes into effect after they pass on. Finally, while Wills can be simple documents and can be drafted by individuals themselves it is highly recommended to seek legal advice prior to preparing it and get it drafted professionally because:

  • It is a legal document and if drafted incorrectly, may be determined invalid by the Court; and
  • People may fail to consider all aspects of distribution of assets which may cause adverse outcomes.

Remember Wills can, and should be reviewed from time to time as circumstances including death, divorce or incompetence of the Executors may require amendments to your existing Will.

If this article raises some questions in your minds please contact your legal advisor.

Mondira Mukerjee

Principal, MM Legal Practice