Kids miss-out under terms of will

COMING up to this column’s ten-year anniversary, here is a remaster of the very first article.

Jack and Jill have been in a de facto relationship for a few years.

They each have two children to a previous relationship.

They discuss their Wills with each other and agree that their children are to be the primary beneficiaries of their respective estates.

They both have significant amounts of superannuation and they purchased a home together last year.

They do not have any other significant assets.

Jack and Jill make valid Wills, leaving “my share in my real property and the balance of my superannuation fund to my children equally” and “the rest of my estate to my partner”.

When Jack passes-away, his children take his Will to a local solicitor.

To their surprise and great disappointment, the solicitor advises them that they receive nothing under the Will.

The real property was purchased by Jack and Jill as joint tenants, so the whole of the property passes to Jill by way of the “right of survivorship”.

It does not matter what was stated in Jack’s Will.

If they purchased the property as tenants-in-common in equal shares, they could have left their half-share to their children under their Wills.

This important difference in ownership was not raised by their conveyancer when the property was purchased.

Similarly, the balance of Jack’s superannuation fund does not form part of his estate.

The wishes contained in Jack’s Will are not a valid direction to his superfund and without a binding nomination in place, the trustee of the superfund exercises its “discretion” and decides to pay the whole balance of his fund to Jill.

This Hypothetical demonstrates the importance of obtaining proper legal advice when making a Will, even in circumstances where your estate may appear to be relatively straight-forward.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column is only accurate at today’s date and cannot be relied upon as legal advice.

By Manny WOOD, Solicitor