Stephen Colbert: “You don’t care about dying?” Ricky Gervais: “Well, I don’t care about being dead, because I won’t know about it. It’s like being stupid – it’s only painful for others.”
Making a Will requires collecting one’s thoughts as to how you wish for your worldly possessions and assets to be distributed after your death.
It requires turning one’s mind to nominating someone to administer your estate after your death, having consideration as to what your assets are, identifying the people who may have a moral claim on your estate, and then deciding as to how you wish to distribute your assets.
You can do this yourself with a DIY Will – just as you can change the brakes on your own car, or if you wish for a professional to review the effectiveness of your wishes, consult a lawyer to assist you to prepare the document.
In any event, making a Will requires time and expense – just like going to the dentist, repairing faulty wiring in your house, and paying your water bill.
And like the above activities – you don’t HAVE TO have a Will.
In the absence of a Will upon your death, the government has prepared a will for you, by way of intestacy – from the Latin meaning “no will”.
Under intestacy, your assets are divided in accordance with a strict formula over which you will have no control – but if you’re dead, you won’t have to worry about this – the decision will be made for you.
Unlike if you leave a Will, which is a document clearly identifying your testamentary intentions, the person with the greatest claim upon your estate (generally one’s closest legal relative) willHAVE TO make a special application to the Supreme Court to be appointed administrator of your estate. This is not an easy process, but it is a task for your survivors, not you – so it’s nothing you need worry about.
The applicant needs to prove to the court ‘who’ they are, ‘how’ they are related to you, and ‘why’ they (and no one else) should be the administrator. They must also prove to the court how the other beneficiaries under intestacy are related to you and why they should benefit from your estate.
If they are a spouse, they must give evidence to support the extensive searches conducted to establish you left no wills of any kind; clearly identify all persons who would benefit under intestacy; provide a history of your marital status; if the application is made by spouse – evidence of that relationship, and disprove that there are no other spouses at date of death. Not the easiest job for your survivors, and one they will not thank you for – but it requires no exertion by you.
So, in summary, making a will requires some time and expense in preparing a document that accurately sets out how you wish your estate to be distributed, such that upon death your nominated executor can quickly attend to obtaining probate of your will and then administering the estate.
Leaving no will, however, which requires your survivors to do a great deal of work than if you did leave a will, requires no effort by you.
So, the great thing about testamentary freedom – leave a will, or don’t leave a will – it’s completely up to you!
Turnbull Hill Lawyers, and specifically Adrian Corbould and Mary Windeyer, have been named in the prestigious 2023 Doyles Guide. Both were also listed in the 2022, 2021, 2020 and 2019 guides.