Attwood Marshall Lawyers Wills and Estates Lawyer, Natalie Comerford, talks to Robyn Hyland on Law Talks on Radio 4CRB about calamity clauses and their purpose in your Will.
Introduction
For many people, organising getting their Will done is often a task they kick down the road or try not to think about. Although it may be as simple as leaving your entire estate to your spouse, or children, there is a lot more thought that goes into estate planning than simply allocating a gift to your beneficiaries and signing the dotted line. It is important to plan effectively for the future, and the unexpected, and discuss scenarios that can play out with an estate planning lawyer so that you can ensure your Will covers as many scenarios as possible.
The importance of having a Will
No one likes thinking about what happens when you die but if you do not have a Will, you run the risk of leaving a lot of stress and heartache behind for your family to deal with, and your hard-earned assets that you have acquired throughout your life may not go to who you expect them to. Having a valid Will in place will not only make things a lot easier on the family you leave behind, but it paves the way for a much smoother process when wrapping up a loved one’s life and legacy.
As a Wills and Estates Lawyer, one of the greatest benefits for our clients is giving them the opportunity to have a say about who their assets go to and to help them fulfil their testamentary wishes.
Most people are not prepared for the costs involved after you pass away. Unless you have lost a loved one before, most people don’t have any idea about the time it takes to go through the administration process, nor the cost involved in finalising a life. Having the correct legal documents in place can make for a much smoother process and save families from having to engage in complex and sometimes costly legal processes.
There is no doubt that creating a Will has to be one of the most personal and subjective documents you ever create. There are no two families the same and these days there are many different asset structures available, so it does create a unique and individual set of circumstances to plan for and consider. This is often another area where people can benefit from legal advice, people think that a Will is a piece of paper with some written instructions and a signature on it – it’s a common misconception people often fall victim to – I see a lot of people that think they can execute a DIY Will or complete a simple Will online and expect it will protect their testamentary wishes in the same way a Will drafted by an experienced estate planning lawyer can. Unfortunately for the most part this is not the case and we see these types of documents fail time and time again.
Making a Will is so much more than just producing a document. I like to describe it as a process because there are so many layers that go into making a Will to ensure it is not only legally valid but will also withstand the administration process once you pass away. It is quite a complex document that needs to factor in several circumstances to ensure that you are covered in the event the unexpected occurs.
Different strokes for different folks
None of us have a crystal ball and we don’t know when we are going to pass away, under what circumstances, or what assets we will pass away with, which makes it difficult to plan for the unknown.
When you sit down to get your Will done by an experienced estate planning lawyer, they will discuss with you your family dynamics and any factors that should be considered to understand your estate, your intentions, and what contingencies may need to be put in place to ensure your estate plan covers you.
By understanding your family circumstances and the assets you hold, an estate planning lawyer can identify strategies to put in place to eliminate or mitigate any potential risks.
A good example of this would be when a client discloses, they have one child who may be considered more vulnerable than their other children and they worry about the life choices this child has made.
By getting to know more about that child, your lawyer can suggest alternative options to protect that child’s inheritance such as putting a testamentary trust in place to ensure that the vulnerable beneficiary receives the guidance and support, they need to manage their financial affairs.
A testamentary trust may not be suitable for everyone. For example, a testamentary trust may not be suitable for someone who has very young children. Families with young children may benefit from exploring different paths such as who would be the parents’ choice for legal guardian of their minor children, or who is going to hold the money on trust until the children reach an age where they can legally manage their own inheritance. These are the types of questions that need to be explored.
When you are dealing with a young family, it would be a major priority for them to have a say about who they want to look after their children if something were to happen to both parents. Guardianship is often at the forefront of a young family’s mind when they see their lawyer regarding estate planning. The same goes for single parents, especially if the other parent is not capable or willing to take care of the child in the event the primary parent dies.
By exploring individual family dynamics, we can guide our clients and support them to make decisions that they may likely need to plan for as opposed to spending time on other issues that are not very likely to arise.
What needs to be considered for the “calamity clause”
Estate planning lawyers often use statistics to guide potential pathways when considering a client’s circumstances. When comparing a young family with a minor child to an older couple that has grandchildren, for example, we know that statistically there is a higher chance that a young family would be travelling together in a car or all catching the same flight when going on a holiday.
In the scenario where a family is travelling together or often travels together, the potential that a calamity could occur is more prevalent and needs to be given consideration. In another person’s Will who has multiple adult children who live interstate would not be in a high-risk category for considering a calamity event as the chances they may face this scenario are too low to be factor.
Considering these types of scenarios is not something that would be at the forefront of our minds. It is hard enough sometimes for people to consider their own mortality, but to then must consider a calamity or an unexpected catastrophic event would not be something that many people would have thought about at all when considering their Will and who they wish to leave their assets to.
You may have heard about royalty never having two beneficiaries to a crown travel on the same flight or in the same car, the reason for this protocol is to ensure that if a calamity occurs there’s always going to be an heir to the throne. In estate planning it is similar, if there is more risk for your demographic, you need to have a plan in place.
Consider this scenario: a couple has a valid Will and they’ve allowed for their children to be beneficiaries. In the event all four of the family members pass away within a week of each other and their Will has not allowed for a calamity provision, the extended family that are left behind will need to make an application to the court and the rules of intestacy would be applicable. There’s a lot of different outcomes from that can take place once a court gets involved, and generally the court will distribute the estate as per the rules of intestacy and follow a set formula to determine who gets what.
When it comes to how many reserve beneficiaries you should have listed in your Will, there’s no right or wrong answer because everyone’s life and family is different. What may suit one family is not going to suit another. That’s why it is important to discuss your unique personal situation with an experienced estate planning lawyer so that your estate planning can be tailored to your individual family dynamics, lifestyle, and your intentions. Every person’s family dynamics and makeup are different, so the advice as to catering for an unexpected calamity or catastrophic event will vary. However, you don’t want the situation where your Will fails due to all your beneficiaries predeceasing you. In extreme cases this could mean your estate goes to the state or territory government!
Attwood Marshall Lawyers can help you plan, protect, and preserve your wishes
A Will is not just a piece of paper that lists what assets will be given to who, the actual physical document is only a small component of the process.
As a leading estate planning law firm, we are proud to have one of the largest and most experienced Wills and Estates teams in Australia who practice exclusively in this complex area of law. Our lawyers are dedicated to helping people plan, preserve, and protect their wishes and working closely with their clients to put the most appropriate plan in place for your personal circumstances.
We want to help everyone get their most important legal documents updated as the new year kicks off. When it comes to how often a client should update their Will, every three years is what is recommended, or when certain events take place that can invalidate a Will such as the breakdown of a relationship, or the death of a beneficiary or your executor. If you haven’t updated your Will in quite some time, the new year could be a great opportunity to review your legal documents such as a Will or Enduring Power of Attorney.
You can have your estate planning documents drafted at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney, or Melbourne.
Book an appointment with our friendly team online, or by contacting Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au
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