March 2011

The importance of a current Will

The unforeseen consequences of an old Will or no Will at all.

Every year we need to re-emphasise to clients not only the importance of having a Will but also ensuring that it is current. Too frequently there are unexpected deaths where the deceased has either left only an old Will or, even worse, no Will at all.

The recent High Court decision is a timely reminder of the importance of having a current will, particularly for parties who have recently separated.

The husband and wife separated in May 2001 without a separation agreement or the making of a separation order. In October of that year a relationship property agreement was concluded that provided for the transfer of the family home into the sole ownership of the husband and the payment to the wife of half the equity in the home.

The husband occupied the home until his death in 2009 when he died intestate (i.e. having not made a will). The wife applied for Letters of Administration on the grounds that she had a sole beneficial interest in the estate (being still the legal wife and there being no formal separation).

The Court noted the following:

  • Regardless of the fact that the parties had executed a matrimonial property agreement, the wife had a beneficial interest in the estate as a surviving wife.
  • The couple separated by mutual agreement and did not obtain a separation order from the Family Court and therefore the wife was not prevented from obtaining Letters of Administration.
  • There were no other potential claimants.

The Court found that no cause had been shown why the wife should not be granted Letters of Administration. The wife had the sole beneficial interest in the estate and therefore took priority at law.

Having a current Will ensures that your assets go to the person or persons you wish to receive them rather than some other persons potentially receiving the assets by default.

What are Letters of Administration?

Where there is an intestacy (dying without a Will), the Administration Act requires an application by the next of kin of the deceased be made to the High Court for an Order to Administer the assets of the Estate. The Order made is called "Letters of Administration". The Order appoints the Administrator who must administer the Estate in accordance with the Act. Distribution of the assets must be in strict accordance with the requirements of the Act, with the Administrator having no discretion to vary the terms of distribution.