Can your will be kept secret from your loved ones?
Death and money can do strange things to people’s behaviour. Families that get along can end up fighting over inheritance when someone passes away.
So what’s the solution? Tell your family, particularly your partner, what is in your will, even if it’s likely to cause discord? Or, decide that as your will represents your final wishes it is no-one’s business but yours?
Joshua Crowther, an accredited specialist in wills and estates with Stacks Law Firm in NSW, says there is no legal obligation to advise your spouse (or other family members) what you’re including in your will.
“But I certainly think disclosure is the best medicine,” he says. “Even with parents who want to divvy things up, with their kids getting different amounts, I’d generally suggest it’s not a bad idea to talk to them, and [explain] the reasons for it.”
Joshua says problems arise when your will doesn’t meet the expectations of your beneficiaries. Many couples draw up ‘mirror wills’ – identical wills leaving everything to the other, and if they both die, to their children. But it’s trickier if relationships are complicated or one partner has priorities the other doesn’t, such as leaving money to charity.
Joshua says wills are governed by state laws so there are differences, but all try to balance your testamentary freedom to decide where your assets go, against any inherent obligations or moral duty you may have to other people.
What about if I want to leave all my savings to charity?
“If the husband, for example, left all his money to a particular charity, to the exclusion of his wife, she would have the ability to say that was unfair and to contest the will,” Joshua says.
“The court works out whether she has been adequately provided for. It would look at things like the size of the estate, what assets the wife has, and her relationship to the deceased.”
He says courts generally hold that a person’s primary obligation is their spouse. Children are next, with minors usually given precedence over adult children. This doesn’t mean you can’t leave money to charity if your spouse disagrees, but your spouse may successfully contest the will if they are not properly provided for.
Navigating blended families when preparing your will
Blended families can also get tricky. The lawyer explains that your primary obligation is to your spouse, but what happens when they die? One option is to create a ‘life interest’, which allows the spouse to use an asset (often the family home) while they’re alive, with ownership going to your children when they’re gone, Joshua says. “But this does create a possibility of conflict if the children are effectively waiting for the spouse to die,” he says.
Another option is to attach a contract stipulating what the surviving spouse will do. But he warns that if you own the home together, you may not be able to leave your share to someone else.
How does spousal property management work after death?
Many couples are legally ‘joint tenants’, which means ownership of the home automatically passes to the other when they die. If you want to deal with your share of the property in your will, ownership needs to be structured as ‘tenants in common’, Joshua says.
Your superannuation is also outside your will, but you can lodge a binding beneficiary nomination. Be aware that while a dependant (your spouse or a minor child) will receive your super tax-free, non-dependants like adult children will have to pay tax on it. Of course always seek advice from a professional regarding your own tax and finances.
Points to consider when planning your will
- Carefully assess your personal assets and any other assets you control.
- Consider your financial dependants and less-abled family members.
- Fully understand your relationships.
- Consider downsizing and giving gifts while you’re alive.
- Hold sufficient funds/assets for your financial, mental and health security.
- Hold a family conference.
- Check your super arrangements and investment portfolio.
- Make provision for assets you control, with instructions for their management.
26 Oct 2020