Managing Relationships (from a legal point of view) Part 1 by Peter Nevile

Succession Issues for Singles

(Including those with either anticipated or newly acquired single status)
If you are convinced that you are not going to die, or you don't intend to die in the foreseeable future, then read no further.

If, on the other hand, you have accepted your mortality, and know it is only a question of when, not if, you will pass on to another, hopefully better place, I would like to acquaint you with a few issues relating to the need for a Will.

Wills are not only for those in fear of an imminent demise or those in wedded bliss – or otherwise. They are equally important for singles, and particularly important for those who have just exited a relationship, or are about to contemplate a new relationship, or even serial relationships.

A couple of years ago in The Weekend Australia Magazine, Victoria Laurie wrote an excellent article titled 'Estate of Play'. In it she suggests that almost half of the eligible adults will fail to make a Will, or do not possess a current Will.

She also mentions, tongue in cheek but nevertheless a sound piece of advice: "If you have led a complicated life, simplify it with your death or a Will".

Many people are aware that an existing Will becomes void on marriage. However, few are aware that a Will made in marriage is not automatically revoked on separation or divorce.

As you can imagine, an untimely death, which incidentally most deaths are in one way or another, can have unforeseen, unintended, far-reaching and, in many cases, unwanted consequences.

Our laws include rules for Intestacy (dying without a Will) which provides a set formula for the distribution of your estate. However this may, and probably will, produce a distribution of your estate which could be at odds with your intentions, especially if you have recently come out of a relationship.

As Victoria Laurie points out, the issues today are further complicated with multiple marriages, de facto partnerships, same sex couples and offspring arising from one or more unions, including from time to time ex-nuptial children whose presence often comes to light at the most inconvenient and unexpected times, but almost certainly when the prospect of a distribution or inheritance is at hand.

The reality is that these days people are living longer and dying wealthier, with the likelihood of more superannuation and life insurance becoming commonplace. We are all familiar with the saying "blood is thicker than water".

In my experience there should be a caveat to that: except when there is an imminent inheritance which, unfortunately, often leads to family feuds. The death of Robert Holmes a Court, who died intestate, is a prime example.

In managing relationships, particularly following relationship breakdowns, we need to be aware of the competing interests arising from an increasing number of second or third marriages, where there is often a younger partner and children from different unions.

You may not be surprised to learn that the perception of the wicked stepmother or stepfather is still alive and well. Many will be familiar with the long- running feud over Lang Hancock's estate between his daughter, Gina, and his former housekeeper and widow, Rose Porteous.

I strongly recommend if you do not have a Will, or if you recently exited a relationship, you should consult an adviser about the intended distribution of your estate in the event of your undoubtedly undeserved demise.

For those who have recently regained single status, whether through design or circumstances, this is just as important.
While the beneficiaries of your Will are entirely up to you, I should offer a word of warning about using your Will as a mean of punishing or "getting even" with a supposed "guilty party".

If you have existing dependants or responsibilities and you do not favour them with a fair and equitable entitlement, then it is possible for them to make an application to the Court for an increased entitlement in your Will, known as a Testator's Family Maintenance Application.

The cost of such an application is generally not an inexpensive exercise and, provided it is made on a reasonable basis, the costs are almost invariably awarded out of the proceeds of the estate, thereby diminishing the total to be distributed and potentially altering your intended distribution.

It would be remiss of me not to remind you that in the making of your Will you have a unique opportunity to pour oil on troubled waters. By thoughtful distribution of items of family or emotional significance past grievances may be minimised, and perhaps such actions may even help to create an understanding that you were unable to achieve in your lifetime.

You can also provide messages in your Will to explain your actions should, for example, you wish to exclude someone for a specific reason, or simply present an individual message. A Will provides the maker with ultimate opportunity for a comment or monologue with no prospect of correction or right of reply.

I also personally recommend setting aside a sum of money – large or small, depending on the size of your estate – for your wake. You might choose to limit such largesse to the people who attend your funeral, or authorise your executor to provide an open bar at your favourite local watering hole.

A wake has the advantage of providing a final opportunity for people to say the words we all want to hear:….. At the end of the day the deceased had his or her faults, but when all is said and done, was not a bad sort of person.

A sort of final insurance for the afterlife and, as we all know, such comments and observations come more readily through the prism of an upturned glass.

I would like to reinforce a view which most solicitors with experience in Will making share, and that is that no Will is better than a bad Will. We have all seen Wills made by people trying to save a dollar by getting a form from a newsagent or simply scribbling a few words on a piece of paper.

While the validity of such Wills has become more easily established due to the less stringent requirements of recent legislation, the worst part of many of these Wills is that they simply do not achieve the Will maker's intentions.

And,believe it or not, this is not simply a ruse to contribute to solicitors' superannuation funds!

Our lives are becoming increasingly complex, as are our assets and the manner and structures in which we accumulate our material wealth. I strongly advise that you seek professional advice to ensure that your Will actually reflects your wishes.


Nevile & Co. Solicitors
Level 11, 100 Collins Street
Melbourne VIC 3000
(03) 9664-4703

Keywords: Relationships, single man, single woman, Wills, succession