Someone once asked me which (of the many) common misconceptions about wills frustrates me the most.
Tough question!
On consideration, I've got to say the often spouted "Any will can be challenged" that fills the comments section of any kind of social media or online article about the importance of making a will probably takes top billing.
The fact that any will can be challenged is not a misconception. It's true. Whether you've handwritten a will in your neatest cursive or paid a lawyer to draft a document thicker than War and Peace, someone, somewhere can give it a good old poke.
The thing that grinds my gears is what follows "Any will can be contested, so you shouldn't even bother to have one."
Yes, a will can be challenged. But not having one? That's like choosing to drive blindfolded because you heard accidents still happen when people use a GPS.
Shouldn't my say be the final word? (aka why you can challenge a will)
The legal system allows for all sorts of challenges to wills to protect both will makers and beneficiaries from undue influence, lack of mental capacity, improper execution. This is a good thing. It means our legal system is protecting the people who need to be protected.
Most of our legislation came from times when land was owned solely by men, many of whom died young, leaving property to their brother, or mates down at the pub - leaving their spouse and children homeless, destitute, forced to remarry, or take their children to an orphanage.
Whether you like it (or them) or not, If you have a spouse and/or children, they will always get first priority - if you choose to leave them out of your will they have the legal right to challenge your will.
Family can be disappointing. And disappointed.
One of the biggest problems about being in a family is that people can be disappointing.
It's common for people to want to leave a child out of their will. Perhaps they're estranged, they're argumentative, have mental health issues, addiction, they marry someone you don't like, or a raft of other things that people find disappointing (and hurtful and heartbreaking).
Whilst you may see your death as an opportunity to punish those people for disappointing you. Chances are high when you die the disappointing child will be equally disappointed in you.
Perhaps you don't really care - but it goes a long way to helping realise that every action has an opposite reaction (or whatever it is that Newton said).
You may believe your disappointing child doesn't have any right to your estate but the law sees it differently.
Ironically, many of the reasons people are estranged from their children are things that make someone extra vulnerable in the eyes of the law.
The danger of revelling in revenge stories
These revenge stories are the ones members of the "Any will can be challenged, so I just won't bother to write one...." Club hang onto.
They retell the story of Bob who left all his assets to one son and are incensed when they hear his other son has challenged the will to get the half he's legally entitled to. 'He's always been a trouble maker, see that's why Bob didn't want him to get anything', they say to themselves.
They hash out the story of Denise who couldn't quite garner the courage to leave her husband whilst she was still alive so instead left all her assets in her will to her children and the local CWA - leaving her husband Phill (who admittedly was a bit of a twat) to fight with his children to stay in his home. 'Phill is so awful', they say. 'Poor Denise didn't even get to control her money after her death'.
They pull out all the stories of people fighting to be seen and heard. They pull out the stories where the people the will maker was trying to reward ended up being punished.
They congratulate themselves for being ahead of the curve.
They don't tell the stories of the times that challenging a will protected beneficiaries from a rogue executor, or undue influence, or some crazy decisions made when the will maker had a lack of mental capacity.
They put all those stories together and somehow they come to the mind-blowing conclusion: "Well if a will can be challenged, I just won't write one!"
Not writing a will means there's no challenge. And no say.
It never ceases to astound me how people who seem to have a lot to say about not writing a will, seem to have missed the point that not having a will means having NOTHING to say when you die.
I'm going to say it loud for the people in the back: NOT WRITING A WILL MEANS YOU HAVE ZERO SAY WHEN YOU DIE.
Not writing a will doesn't mean your wishes will be magically honoured in some divine, legally binding way. No, it just means the government gets to decide what happens to your estate.
Without a will, your assets will be distributed according to intestacy laws, which means:
- Your nearest and dearest might inherit, but not necessarily the ones you have chosen or in the way you would like.
- Your secret second family (just jokes - but also maybe not!) will get nothing.
- Your favourite charity or lifelong best friend is totally out of luck.
- That distant second cousin you met once at a wedding but legally qualifies as a beneficiary hits the jackpot.
Instead of having one clear document, spelling out your wishes, your family gets to engage in the Estate Planning Hunger Games.
Which branch of the Choose Your Own Adventure will you pick?
No will = zero chance of it being challenged (there's nothing there to challenge) = the Courts will decide how your assets are distributed.
A cheap, tick a box, DIY will = free reign to leave people out (deliberately or accidentally) without understanding who you have an obligation to protect = people spend $$$$ to fight for their piece of your Die Pie.
An estate plan = legal advice about who you are obliged to protect and how to best divide up your Die Pie to make sure nobody is being punished = significantly less chance anyone is left fighting for scraps.
How to write a will and lower your chances of having it challenged
Estate planning is about sitting down and looking at ALL the things that could go wrong. Figuring out all the people who might make a claim against your estate and how they may be viewed in the eyes of the law.
We line all that up against what you want to achieve and come up with a plan that balances your wishes with your legal obligations.
We work out ways you can distribute to people before you die or how you can make other plans (not necessarily your will) to cover your obligations.
We work out ways to keep lawyers out of your death and eliminate any more fodder for the "All wills can be challenged, so don't write one" Club.
I'm in the business of avoiding avoidable problems. Make a will.