Updating a Will

Freddy vaguely remembers hearing about a new Wills Act a few years ago and is concerned that not only is his will out of date, but wonders if it may even still be valid.


It turns out that Farmer Freddy did come down with a case of the flu.

While in the throes of fever and convinced that the end was almost here, Freddy suddenly remembers that he hasn't updated his will since he was his son Jack's age.

While Freddy can't remember quite what was in his will (and even where it might be), he is worried that, after two wives, four children and one trust, it must be rather out of date.

Freddy vaguely remembers hearing about a new Wills Act a few years ago and is concerned that not only is his will out of date, but wonders if it may even still be valid.  After he recovers, he pays a visit to his lawyer.  Freddy discovers that the new (2007) Wills Act does not affect the validity of existing wills but realises just how out of date his will is when he reads a copy his lawyer (who had it all along) gives him. In fact, Freddy's will was made before he married his first wife, Bethany, and as it was not made in contemplation of that marriage, it was revoked immediately upon that marriage.

"Yikes," says Freddy.  "Does that mean all my property goes to the Crown if I die?"

Freddy's lawyer explains to him that, if he dies without a will (intestate), his property will be distributed according to the order of priority set out in the Administration Act.

That means that Freddy's property will be distributed (depending on what surviving relatives he then has) to his wife and children. Only if Freddy dies without any family will his estate go to the Crown, but the intestacy process is expensive and time consuming. To make life easier for his family, Freddy decides he really must make a new (and valid) will.

As Freddy's lawyer explains to him, there are a number of formalities required for a will to be valid. Now that he has decided to write a new will, Freddy's mind is full of possibilities. There are a number of family heirlooms he wishes to ensure pass down certain branches of his family. Freddy also wants to leave some money to the local bowling club and his favourite charities.

Freddy's situation is also complicated by the fact that the farm is owned in a trust and the trust still owes him significant sums of money. Freddy knows he wants the bulk of his estate to go to his current wife Jill, if she survives him, or else his children in equal shares, but is still somewhat uncertain about what other specific gifts he wants to leave and needs to check with his accountant about which of his assets are in a trust and what debts are owed to him from the trust, so his will can deal with the forgiveness of those debts.

Freddy's lawyer gives him a will instruction sheet to take home and fill out to help him set out his thoughts more clearly before the lawyer drafts Freddy's will. Freddy is warned that treating his children equally may not stop a claim under the Family Protection Act if one of them thinks that, actually, he or she has not been provided for adequately.

With his mind whirring with possibilities, and a need to do the right thing, Freddy heads home to start writing down his ideas, and over the next few weeks, excitedly (and unfortunately) makes many promises to friends and family about what they can expect to inherit under his will.

 

The content of this document is necessarily general and readers should seek specific advice on particular matters and not rely solely on this document.
If you would like further information on any of the topics in this document, please contact your usual Auld Brewer Mazengarb & McEwen adviser.
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