Updated: Jul 27, 2020
Originally published in the June 2020 edition of The Legalese.
So you have just made an appointment to see your lawyer about a conveyancing matter but in conversation your lawyer also mentions the importance of having a Will. You brush it off saying you have one of those DIY Wills tucked in a drawer somewhere from 10 years ago before you had a wife and children.Your lawyer tells you that's not good and that you need to get a new Will, but you're thinking you don't really need a Will right now. After all, you're healthy, your family is on good terms, and surely they know your wishes so what's the point of a Will?
Now let's talk a little about Peter Brock. When the Aussie legend died in 2006 a battle for his estate ensued. While there was already one Will in existence, there was also seemingly a second updated Will although one that was never properly executed. The matter resulted in a lengthy legal battle. that was undoubtedly costly. The Peter Brock case is a reminder just how important Wills are. This is why you need make sure your estate matters are in order. At the very least it will save your beneficiaries months and sometimes years of anguish and heartbreak.
In 1984 Peter Brock made a Will containing a provision that his wife Bev was to stay in the family home until marriage, death, or the youngest child turning 18 with income being paid to Bev and the children until the youngest turns 25. There was also a provision for the remainder of the estate to be received by his children. Fast forward to 2003 when Brock (who at the time was in a relationship with Julie Bamford) began filling in a DIY Will kit. As it turns out the DIY Will was never completed. While it was signed by two witnesses (Brock's wife Bev and his PA) the document did not contain any directions about how his estate is to be distributed. Moving on again, this time to 2006, and Brock dictated to his PA another DIY Will that was never signed. It also didnot contain any provisions about the appointment of an executor or any funeral wishes.
The Supreme Court of Victoria held that the 2006 Will was not valid as it was not signed and was therefore held to not have been intended by Brock as his final Will. It was held that with Brock having made previous Wills he would have been aware of the requirement for a Will to be signed and witnessed. The Court further held that Brock’s 2003 Will was valid even though it did not contain any provisions about how the estate was to be distributed. As such, his estate was to be distributed in accordance to the intestacy rules which meant his two natural children Robert and Alexandra would share the estate. Brock’s step son James would be left out even though initially included in the 1984 Will. The decision however was contested by Brock’s partner Julie under family provisions legislation. All claims later settled our of court.
Here are our top 5 tips on Wills:
Your Will contains your wishes on how you want your estate to be distributed when you die. You can even make provisions for specific gifts, a legacy or a charitable gift.
It is very important that your lawyer is aware of your personal circumstances. So be up front about your relationships and family unit and be comfortable to speak freely. You should also consult your lawyer if you already have a Will but your circumstances have changed (e.g. you separated or remarried; you have more children; you have a new business etc.).
You need to appoint an Executor who will administer your estate according to your wishes. Your Executor can also make funeral arrangements based on your wishes.
Yes, you can provide instructions in your Will about your funeral or cremation arrangement.
If you have young children you can also appoint a Guardian for your children in your Will.
Our lawyers here at Ann Legal happily serve clients across the Newcastle, Hunter and the Central Coast and have years of experience working with Wills and Estates. They can provide you with comprehensive legal advice tailored to your circumstances for your peace of mind. Call us today on (02) 8005 8025 to find out more.