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The Importance of Leaving a Validly Executed Will: Protecting Your Wishes and Loved Ones

Losing a loved one is never easy, and the process of handling their estate can add additional stress and complications. One way to ensure that your assets are distributed according to your wishes is by leaving a validly executed will.

In this article, we explore the benefits of having a will, using the example of a middle-aged man who passed away without one, resulting in unintended consequences for his mother and her financial stability.

Protecting Your Wishes

When a person dies without leaving a will, the legal term for this is dying ‘intestate’. This means that their estate will be handled according to the laws of intestacy, which typically involves the distribution of assets according to a statutory formula. Specifically, the Administration and Probate Act 1958 (Vic) establishes a statutory scheme for the distribution of property on intestacy within Victoria. By not leaving a validly executed will, the individual loses the opportunity to express their specific wishes for the distribution of their estate.

Case study

Consider the case of a middle-aged man who passed away without a will, leaving behind no children or partner. According to the laws of intestacy, his entire estate was transferred to his surviving mother. However, before his passing, he had verbally expressed his desire to leave a portion of his estate to his niece and nephew, as well as donate a portion to a charitable organisation. Unfortunately, without a valid will, his verbal wishes were not legally binding, leading to his estate being distributed solely to his mother.

According to section 70 (division 6) of the Administration and Probate Act 1958 (Vic), if the deceased person had no partner or children, then all the estate goes to relatives in this order:

  • Parents;

  • Siblings;

  • Grandparents;

  • Aunts and uncles;

  • Cousins.

Unintended Consequences

The unintended consequences of dying intestate in this example were twofold.

Firstly, the man's wishes to gift part of his estate to his niece and nephew, as well as support a charitable cause were not fulfilled. This highlights the importance of formalising one's wishes through a validly executed will, to ensure that specific individuals or causes are provided for after death.

Secondly, the transfer of the entire estate to the mother had unforeseen implications. As a result of the sudden increase in her assets, the mother lost her pension eligibility, leading to financial hardship. She was forced to restructure her finances, which caused additional stress and uncertainty during an already difficult time. This situation could have been avoided if the man had left a validly executed will that addressed the specific needs and circumstances of his loved ones.

The Benefits of Having a Will

Leaving a validly executed will offers several benefits, including:

  1. Ensuring your specific wishes are fulfilled: A will allows you to express your desires regarding the distribution of your assets, providing peace of mind that your intentions will be carried out.

  2. Protecting loved ones: A will allows you to name beneficiaries and provide for their financial well-being, ensuring they are taken care of after your passing.

  3. Minimising conflicts and disputes: A well-drafted will can help prevent disagreements among family members and reduce the likelihood of costly legal battles. Conversely, intestacy does not take into account the particular wishes of the deceased, or the needs or claims of family members – and this can cause conflicts among the deceased person’s family.

  4. Maintaining privacy: A will allows for the private distribution of assets, whereas intestacy often involves a public process that can potentially expose sensitive family matters.

Leaving a validly executed will is a crucial step in protecting your wishes and ensuring your loved ones are provided for after your passing. The case study of the middle-aged man who died intestate demonstrates the potential negative consequences that can arise when one's wishes are not formally documented.

By taking the time to create a will, you can have peace of mind knowing that your estate will be distributed according to your specific wishes, minimizing potential hardships and disputes for your loved ones.

Disclaimer: The information provided in this article is for general informational purposes only and should not be construed as legal advice. Consult with legal professionals for personalized guidance.


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