Brisbane’s Legal Lowdown: There’s more to estate planning than deciding who gets what

Sofie: It is that time of the week again, our legal lowdown with Attwood Marshall Lawyers. This is where we explore all the legal issues that affect us, and there are some that affect all of us, no matter what.

We’ll talk about estate planning and wills on this segment and it’s usually what people think about least until you sort of get to the pointy end,  and sometimes you don’t have as much control over what your assets are going to do and where they’re going to go after you pass, and there’s a whole other side to estate planning that gets overlooked and that can be what happens to you, not just your belongings.

And sometimes the biggest disruptors and the disputes will happen after someone’s death. And it’s not just about money, it’s about how that person should be laid to rest.

And you know, as I said, sometimes these can be awkward conversations, but they’re kind of conversations that you have to have.

So, we’re going to unpack it all with our Attwood Marshall Lawyers, Estate litigation Senior Associate Duncan McDougall. Good afternoon.

Duncan: Thanks for having me again.

Sofie: There’s the stuff, and then there’s you.

Duncan: Exactly. That’s it. And it’s one of these things a lot of people don’t like talking about death, let alone what’s going to happen to your body after you pass away. Generally, see two sets of minds, one says “Oh well, I’m dead. What do I care?”. The other says “Well, actually I got a list of things I want to make sure happen.”

Sofie: When you go and have a conversation with an estate planner and you’re going through all of the bits and bobs and what’s going to go where and what your planning might look like and what you want in your will, and you know even those other things we talk about, you’re enduring power of attorney you’re, what’s the medical one called?

Duncan: Advance Healthcare Directive.

Sofie: Advance Healthcare Directive. Do you also just put this on the list when you’re talking to people?

Duncan: Absolutely. Yeah. It’s more of just a question we propose to them, do you have any specific wishes regarding the disposal of your body.

Sofie: Don’t say disposal.

Duncan: Let’s call it funeral arrangements then in which case a deceased can or sorry a person can put those parameters under their Will, or in a separate document in a letter of wishes or memorandum of instructions, in terms of what’s going to happen.

Sofie: And so that gets included in their will those details and what’s going to happen?

Duncan: It does, yes.

Sofie: And what’s the most common thing that people would ask for?

Duncan: It can be, very well, it’s my strong wish that my body is cremated or buried. You know, some people want to expressly state that they want organ donation, which you have to be a registered donor anyways, things like that.

Sofie: And it also depends on what your last days are too.

Duncan: Exactly. Although, I’ve had some clients where it’s very specific as to what happens at the funeral and how funds are going to be applied for that funeral.

Sofie: Yeah. Are you finding that more people are preparing for that beforehand? We know that this is available now that you can pre plan so much of that detail. A, it takes the burden off the family. B, it’s what you want, C, you can pay for it so it doesn’t have to be found after the fact.

Duncan: Yeah. And I say it’s being from the litigation space as well, it avoids disputes. So, if you’ve got clear intentions as to what happens there and you’ve already paid for certain things to happen, it’s already clearly laid out as to what’s available there and what your intentions were at the end of the day.

Sofie: And who you don’t want to have there. Put that on the list as well.

Duncan: Exactly, yes. And very importantly, when preparing that will, it’s having that conversation about who’s going to take control of your estate and your estate is also taking control of you and what happens in decision making in terms of what happens to your body after you pass and that lies with the executor.

Sofie: And these days, we know that there’s not just the choice between burial and cremation, as you just said, there are some other really creative ways that people can be farewelled. Tell me about an aquamation.

Duncan: Well, yes, I’ve heard this one as well, where I think they combine water and alkaline solution and heat to dispose of your body. Apparently, it’s a lot more environmentally friendly, as opposed to cremation.

I’ve also heard things where people have been combining to what was considered a reef ball, which then they’re set off into the ocean.

Sofie: How many people decide to be pressed into a diamond?

Duncan: A few of them, those as well, yeah.

Sofie: I kind of like that idea. To be pressed into a diamond. This aquamation thing, though, when it is something like that, that’s a little bit more creative. Outside the box if you will. Is that legally binding?

Can family members go, okay that’s a little bit out there.

Duncan: Yeah, it can be a little bit out there, but again, if you’ve already paid for it and it’s already in motion then generally an executor is obligated to respect the these wishes to as much as they can. But at the end of the day, it’s going to be the executor making the final call. So, a lot of disputes arise where somebody may have told somebody saying, well, this is really how I want my body,  I want to be planted under a tree, something like that. But really the executor saying no, we’re going to cremate you and away we go. And all of a sudden, then there’s a dispute that arises between family members and the executor.

Sofie: Have you ever had anybody want to be cryo’d? Like put on ice in case one day, fifty years from now, they can be reanimated?

Duncan: Wow, I’ve heard. Was it Disney who was looking into that?

Sofie: There were stories about it not that long ago. I saw one on 60 minutes. What about if somebody hasn’t in all seriousness, I know we’re making light of this, it is a serious conversation, but I think having some levity in it makes it that much easier to talk about.

What if somebody hasn’t left any instructions or their family can’t agree on what should happen? Who actually gets to make the final decision?

Duncan: When you have a will in place, obviously that’s good. That decision is going to allow the executor, they’re making the final call. When you don’t have a will in place or no clear instructions laid out, then that creates a little bit more of a problem, a bit more of a situation where it’s generally the person who will have priority to administer your estate, who will have priority to make that call.

So, a case a Queensland case comes to mind where you had two parents have a dispute over what’s going to happen to their son, who passed without a will. One, the father from an Aboriginal heritage, the mother from a European heritage, one being burial, then one being cremation. And ultimately the father made an application and it went all the way to the court, which the court then awarded that the body was to be buried. It was all based on certain things like conversations the deceased had with prior family members, things like statements that they made to one another, things that he would normally be surrounded with. So, when the court looks at these sorts of things, what they try to do is take all the evidence on foot and really could get down to what would the deceased want to happen.

Sofie: Jamie wants to know what happens in the case where the executor of the will passes away at the same time as the person for whom the will is that they’re the executor for?

Duncan: Yeah. So, you’ve got a situation where you probably look at the will itself first, see if you’ve got an alternate appointment there as an alternate executor, or also known as a reserve executor who would take on that role.

If there’s no reserve appointed, then all of a sudden then you’re dealt with a partial intestate estate. The will itself is still valid. It’s just then you’ve got an issue about who’s going to take priority, and there’s a legislative list of people who will then have priority to actually administer the estate in accordance with the deceased’s instructions in the will.

Sofie: Another question has come through about what happens if people want to be able to leave money to charity or a bequest. Can anyone fight that, is the question basically. So, if you want to pass your estate over any of your humans and you want to either give it to charity, this is an animal charity, or you want to be able to donate it, can people lay a claim against that?

Duncan: Yes, certainly. Well, there’s certain eligible people who can make a claim, especially if a deceased person had left everything to a charity. Generally, you’re going to have claims from spouses, children and dependents.

Sofie: And will they generally be able to do something to change that? This is where you and I have had this conversation before.

Duncan: Yeah, we’ve had these conversations before where again they may be eligible. It’s all going to come down to whether they can show need for further provision and whether that claim would be successful. It’s going to turn on several different factors including the size of the estate, their relationship with the deceased and then that they can show need for further provision.

Sofie: Back to the beginning of this conversation. This just comes down to yet another of the elements that people should be considering when it comes to wills and estate planning. And making sure that somebody knows what you want and even better if that’s actually documented.

Duncan: Exactly. And not only that but have these conversations with people so there’s more people who may know what your intentions are. And you may not have to go into the actual distribution of your estate or otherwise. But when we’re talking about what happens to you and your body, if grandma always said I want to be buried, I don’t want to be cremated. The more people who know that, the less disputes are going to arise at the end of the day.

Sofie: And that’s exactly what you want to try to avoid. As always, a pleasure to have you on the program. Thank you for answering the questions from the listeners and for inviting us to have this conversation, as difficult as it might be, families will be getting together over the next couple of weeks and months. It could just be one of the things you tack on to the things you talk about.

Duncan: Add that to the Christmas list.

Sofie: Thank you so much as always. And if you’d like to reach out, there is always the opportunity to speak to the team from Attwood Marshall Lawyers, including Duncan MacDougall. Thanks, Duncan.

Duncan: Thanks for having me.