Where there’s a Will…

A VALID will serves a number of purposes. The primary one is to ensure that a deceased person’s estate is distributed in accordance with their wishes.

Those wishes may include:

  • particular people receiving specific items from the estate; or
  • that they receive a particular share of the estate; or
  • that part or all of the estate is to benefit some charity or charitable purpose.

A valid will also gives effect to the deceased’s choice of the person or persons to administer and distribute the estate (that person is the executor).  If there is a valid will, the executor applies to the Supreme Court of Western Australia for a grant of probate.

A valid will can also specify:

  • who the deceased might wish to be guardians of infant children;
  • whether the deceased wishes to be an organ donor and for what purpose the deceased’s organs may be used;
  • the arrangements and religious rites to be observed at the deceased’s funeral;
  • whether the deceased is to be buried or cremated; and
  • where the deceased is to be buried or their ashes are to be interred or scattered.

If a deceased person has not left a valid will, they die intestate.

In the case of intestacy, the deceased’s estate is distributed in accordance with the provisions of the Administration Act.  Ordinarily, a person entitled in distribution of an intestate estate applies for a grant of letters of administration (with the consent of other eligible beneficiaries).

Whether a person is entitled in distribution of an intestate estate depends on the familial relationship between the deceased and those who survive the deceased.  Charitable purposes and charities are not included by the Administration Act.

A common misconception among married couples is that a will is not necessary as the assets of the deceased spouse will automatically pass to the surviving spouse.  While that is true for bank accounts held in joint names and property held as a joint tenancy, it is not true for assets which are held in the sole name of the deceased.

As an example, the Administration Act provides that if a person dies leaving an estate worth more than $50,000, a surviving spouse and surviving children who are under the age of 18 years, the surviving spouse receives:

  • all the household effects;
  • the first $50,000 and interest from the date of death; and
  • one third of the balance of the estate.

The remaining two thirds of the estate must be held on trust for the infant children until they turn 18.

It is not difficult to imagine a situation where a widow or widower with young children would need access to all of the assets of the estate to properly care for and provide for the children until they become independent.  Sadly, we have seen it before.  This scenario is made worse when the deceased has been the primary bread-winner.  Often, the widow or widower has little earning capacity, and is unable to provide for the children without further provision from the estate.

In the case in question, to avoid the consequences of nearly two thirds of the deceased’s estate having to be held in trust for the children until they turned 18, the widow first had to apply for letters of administration and then apply under the Family Provision Act for greater provision to be made for her out of her husband’s estate. The result was that she was awarded the whole of the estate but only after additional months had passed and additional costs had been incurred, all during a time of upheaval and grief.

A valid will may also help to protect a deceased’s estate from challenges within the family. Its validity may be challenged on a variety of bases, including the will maker lacking capacity, or signing the will under duress.

Further, eligible family members may commence an action under the Family Provision Act on grounds that the will did not adequately provide for them.

There are techniques and strategies that can be employed to protect an estate from future litigation, whether they be challenges to the validity of the will or to the adequacy of the provisions made from the estate.

Accordingly, it is highly advisable to engage a competent lawyer to prepare your will and to review that will on a regular basis.