Have you noticed how over time our lives develop and change? Often we are too busy to notice the changes until we find ourselves asking our kids to turn down ‘that awful loud music’ and relishing a night at home in front of the fire rather than a night on the town.
Recently whilst preparing for an overseas trip, I decided to check our legal papers to ensure they were in order. We made new Wills when we were married and I was surprised to discover how much our lives have changed over the past fourteen years.
Reviewing our Wills revealed that even well-constructed Wills can exceed their ‘use by’ date. A few of the issues we discovered were:
• We now have two primary-aged sons who were only vague twinkles in our eyes at the time of signing our previous Wills. If anything were to happen to my husband and I, we hadn’t considered who would look after our kids. We saw the need to appoint a guardian for our boys, taking into account who they know and like, where they would live and, of course, whether the guardians would be happy and willing to take on this responsibility We also considered our wish for the boys to stay together. While appointing a couple, it is also wise to consider what would happen if they were to separate.
• It is common to appoint your marriage partner as Executor of your Will, but it is equally important to appoint a reliable alternate Executor. Over time, your alternate Executor may lose capacity for this role or your relationship with them may change. I was saddened to read over my old Will and realise that two people mentioned have since passed away. Keeping up-to-date with your choice of alternate Executor will ensure the right person acts in this important role.
• I hadn’t considered what would happen in the awful event that we were all killed at once. I’ve learnt that the younger party in the marriage is deemed to die last in the event of an accident, so the provisions of the younger person’s Will would come into effect. There may be specific people or charities which you would like to leave your Estate to if you do not have children or grandchildren.
• If you have a self-managed superannuation fund (SMSF), the fund will not necessarily be considered to be part of your Estate to be administered under your Will, but will be dealt with under the terms of the Trust Deed. Often SMSFs are operated in a company name and you act as trustees. A Binding or Non-Binding Nomination form is required to ensure that your super fund will be correctly dealt with in the event of your death. There are also rules that a binding nomination must be renewed every three years. In addition to this, there are tax implications to consider in how you deal with your SMSF. I would recommend that you obtain detailed advice from both your Solicitor and Financial Adviser if you have a SMSF.
• Although we have Enduring Powers of Attorney to one another, my partner and I hadn’t considered Enduring Guardianships. A Power of Attorney simply deals with handling one another’s financial issues, but an Enduring Guardianship allows you to make medical decisions on one another’s behalf. After caring for my parents when they became ill, I’ve realised how crucial this document can be. Another document to consider is an Advanced Care Plan which provides your family members with a detailed list of your wishes in the event you become too ill to express them. This may well remove the burden from your family of making some difficult decisions and gives you the power to control the medical intervention you receive.
So now we have our Wills and legal documents sorted out, I’m going to lock them in a safe, jump on that plane and embrace life!
If you are concerned that you may have outgrown your Will, or if you would like more information about Powers of Attorney, Enduring Guardianship or Advanced Care Plans, please contact our Wills Team.
