When I speak to people about why they haven’t done a Will, they often say doesn’t it all go to my spouse anyway? I previously posted about the difficulty and delays that your spouse might encounter, if they manage to secure the Estate for themselves, and you can read about that here.
It is also important to understand that your spouse may not get everything or anything.
Not everything is covered by intestacy
There are assets that are not covered by intestacy because they do not form part of the Estate, like superannuation, life insurance and real estate owned as joint tenants. If your spouse is challenged in relation to any of these assets then how will they prove that you wanted them to have those assets? People don’t always leave everything to their spouse. The absence of a Will leaving assets to someone else does not equal proof that the widow should inherit everything.
The process literally invites claims
The process of applying for Letters of Administration is more cumbersome, you need to serve more notices on more people and it can literally invite a claim. All lawyers can tell you about estates where they had to find and serve notice on someone who subsequently made a claim, someone who might not have even known that the person had died unless they had received that notice.
The Court does give weight to a Will
Even for assets that do form part of the Estate while it is possible to challenge a Will in NSW, the position is not that the Supreme Court throws out the Will document. The Supreme Court of New South Wales has said time and time again that they do not throw out the Will, they do give weight to the wishes of the deceased and the testamentary documents. The Court performs a balance between the Will and what the law says about moral claims against the Estate. Without the Will your spouse is just left responding to these “moral” claims against the Estate (basically, who the law says that the deceased person ought to have provided for).
Tell the Court what you want in the most obvious and straightforward way possible, prepare a Will. One of the fastest growing areas of law is claims against Estates, help your spouse out, give them the most obvious piece of evidence that you wanted the Estate to go to them.
Evidence is important
You are dead, you are not around to respond to the allegations made by the person claiming against your Estate. For instance, some categories of ‘eligible person’ to claim against an Estate need to prove not just that they form part of that category, but also that they were financially dependent on the deceased. The common claim in these situations is that the deceased used to give them cash, a difficult thing to disprove.
If you have a properly prepared Will and proper Estate Planning advice then you can discuss what categories of person might make a claim against your Estate and leave evidence about why you have not included them. So not only will your spouse have the Will, they will also have these other statements. This evidence needs to be in a particular form, most people focus on the more moral aspects of their decision but what tends to be more powerful in defending your Estate is more pragmatic information. Your Estate lawyer can step you through this process.
Make sure that the right people get your Estate, prepare a Will.