B Hayward and Co

Blog

  • What happens to a persons property when they someone just disappears?

    • If a person is not heard of for 7 years, an application can be made for Probate of their will (if there is a will) or Letters of Administration of their estate (if there is no will).
    • Death must be the most likely explanation for silence.  This means that they more likely disappeared to avoid paying their debts.
    • The time may be shortened if they were exposed to ‘unusual perils’ such as being lost at sea or in a plane.  This is what happened to the passengers of the plane that disappeared on the way to Lord Howe Island.
    • Sometimes the declaration of death is made by an inquest into the disappearance.

  • What happens if a witness dies?

    • The will is still valid
    • The only problem is that the witness can’t give evidence that the will was freely signed by the Testator.  This will only be a problem if there is a dispute over the signing of the will.

     

  • What happens if my executor dies before you?

    • If he dies either before you or after you but before obtaining probate of your estate, the other executors (if you have named more than one) take on the task. If this leaves you with no executor, the principal beneficiary will have to apply for ‘Letters of Administration with the Will Annexed’.
    • If one of your executors dies after you and after obtaining probate of your estate but before the estate is finalised, the other executors continue the task. If there are no other executors, the executor of the deceased executor takes over both your estate and the executor’s estate.

  • What happens if two beneficiaries die together?

    • When it can’t be decided who died first, the law presumes people to die in order of seniority (ie. eldest first). This may mean that the assets of the elder pass to the younger and then to the beneficiaries of the younger.
    • If two people own an asset as joint tenants (the other form of joint ownership is called ‘tenants in common’) then a rule known as ‘survivorship’ applies. This rule means that when one dies, it automatically passes to the other, regardless of what the first persons will said. If they both die together, it passes to the younger and then to the younger’s beneficiaries.

  • What happens when a beneficiary in a will dies either before the person who made the will ?

    • When a beneficiary dies before the person making the will, the benefit ‘lapses’. This means it will pass to the person who was to receive the ‘residue’ of the estate. If there is no ‘residue’ clause, this will be the person(s) who would get it on intestacy.
    • However, if the person who was to receive the benefit is a child of the person making the will and they have children of their own (grand children) their share passes to their estate (which may or may not mean the grand children).
    • When a beneficiary dies after the person making the will, their share is part of their estate and will pass to their beneficiaries, even if they haven’t received the funds from the first estate.

  • My aunt left a handwritten note saying that she wanted everything to go to me when she died but it is not signed or witnessed. Does it have any legal effect?

    • The Supreme Court now has power (since 1989) to give effect to any document that appears to have the intention to be a will. Evidence can be given of statements of the deceased about their intentions.
    • The case of the famous painter Brett Whiteley is an example of this where the Supreme Court accepted evidence by a witness to a handwritten will of its contents though it could not be found.

  • My uncle left me a house in his will but the house was sold before he died and the money put into a bank account. Can I have the money ?

    • Depends who sold it. If your uncle sold it himself, you are out of luck. If it was sold by his ‘Power of Attorney’ or the Protective Commissioner then you are entitled to the proceeds of sale, if you can prove where they went.

  • How can I cancel a will that does not reflect my current wishes ?

    • Make a new will. A standard clause in a will says ‘I revoke all previous wills‘.
    • Destroy the will or write cancelled on it. You need to have the original for this. The destruction must clearly be with the intention of revoking the will, not just accidental.
    • you can direct someone else to destroy the will but it must be done in your presence. It is not sufficient to ring your solicitor and tell him to destroy it.
    • by some writing (ie. a letter) that is signed in the same manner as a will (with 2 witnesses etc).
    • You can’t authorise someone else to revoke a will after your death.

  • How often should I update my will?

    • Only marriage will cancel a will but circumstances change and this means your will might need to change too.  If you loose a spouse or child then you should review the will.

  • I have married since I made a will. Does this make any difference ?

    • the general rule is that marriage cancels a will so you now have no will – if you died without making a new will, the rules of intestacy would apply to you.
    • The exception to the rule is if the will is made ‘in contemplation of marriage’. It is best if these words are stated on the will but the terms of the will or surrounding circumstances may show that marriage was being considered in making the will.
    • Divorce does not invalidate a will but such ex-spouse is dealt with as if they had died before you. If you want to provide for an ex-spouse the will would have to be very specific. I suggest words like ‘This clause is intended to apply even though I have divorced …’