Things Old Wills Can Throw Up...

 There is a reason we tell clients that they should review their Wills every so often.

Because things change.

And when they do it might be important to change your Will too. You don’t want to be the one who is still leaving everything to the ex wife or husband when your new partner or your kids could do with the money.

Or your kids’ kids.

Here’s an interesting situation we ran into recently:

Bill was an elderly man on his second time around. He had two children from his first rodeo, and now he and his second partner Doris owned a house together.

Bill’s Will was probably a reasonable effort to look after everyone in his life. He was giving Doris a number of chattels and personal items and also the right to occupy the house or any replacement house as long as she was alive. This worked because they owned the house as tenants in common in equal shares.

In other words Doris already owned half of the house. Bill owned the other half. Being “tenants in common in equal shares” meant that if she died her share of the house would pass to whoever she named in her Will.

Likewise if he died.

So in his Will Bill left everything to his children but Doris had the right to occupy the house until she died. Seems reasonable. She was not disadvantaged and the kids were looking good longer term.

But things could’ve been a lot worse for everyone.

If, for example, Bill had left everything to his children and only the personal items to Doris, that could’ve caused issues. After all she owned the other half of the house. Most likely the house would have to be sold so she could get her money out and try to find another place to live in. With half of the money.

What are the chances she might not be happy with that? What are the chances that she might make a claim against his estate? Yes it might’ve suited Bill’s children more because they’d supposedly be getting their share sooner. But would they? If a Family Protection Act claim surfaced maybe there would be a delay. A significant one even. And some bad blood between them and Doris. That tension between your kids and partner number two is always there and this shows why.

What about if Bill and Doris owned the house as “joint tenants”? Owning property as joint tenants means that if he died the house would be transferred to her sole ownership, and vice versa.

Works for Doris but what about Bill’s kids? Now they’re the ones bringing a claim against his estate. Oh such fun!

There is even a third potential claim against his estate in this scenario: And that could come from the grandkids.

That’s because under his Will everything is passing to his children once he has gone and Doris has also passed on. So under the Will (made many years earlier) what goes to his children goes to them in equal shares “or to the survivor of them”.

By now though, both of Bill’s children have children of their own. Luckily in this case his children outlasted him. That is good because if one of them had died before Bill leaving him with grandchildren, the grandkids would’ve missed out because once their parent died everything was being left to Bill’s other child!

You can see how that could happen – probably when he signed his Will there were no grandchildren on the scene and they probably weren’t even on the radar then. So now they’re here and but for a stroke of luck Bill’s kids (of which one is their parent) are as well. Otherwise the grandies could have been trotting off to court as well to have a crack at Bill’s estate.

So you can see how easily it can turn pear shaped if you don’t review your Will. Anytime there is a change of circumstances you should review it.

A Will is not a “one size fits all” document either. Everyone’s circumstances are worth treating as unique. Here Bill had best intentions and still could’ve got it wrong.

I’m sure we’d all agree, it’s not a nice thing to put your family through once you’ve gone.  

Anyway, have you reviewed your Will lately? Has anything change in your life since you last did one?

Have you even got a Will? If not, well, that’s the other thing – don’t leave it too late. If you lose your faculties for any reason its too late. We all know at least someone who has lost their marbles and the ones I know are not all oldies. Think about that for a minute.

Contact Queenstown Law on russell@queenstownlaw.co.nz, claire@queenstownlaw.co.nz or admin@queenstownlaw.co.nz or call us on 03-4500000.