Where there’s a will . . . there’s a way

Press, 23 June 1978, Page 13

Where there’s a will . . . there’s a way

By

KEN COATES

It might sound ghoulish to admit it, but we all privately hope that an inheritance, unexpected or otherwise, might one day come our way. The trouble is that when someone forgets to make a will, lifelong friends and close relatives can ruarrel bitterly over jewellery, furniture, paintings, silver, property or money. And the pleasure of getting an expected inheritance can turn into a nightmare. Even a widow, happily married during her lifetime, can find that she is far from well-provided-for when her husband dies “intestate” — without having made a will. The advisability of writing a will is not advice invented by the legal profession. But is a common misconception that when a man fails to make a will, the Government grabs all or a large part of his estate.

If a married man with no children dies without a will, then the law says his wife receives his personal chattels, as well as the first $25,000 worth of the estate, and two thirds of what is left.

The remaining third goes to the deceased’s parents. If both have died, the widow receives all the estate.

If the forgetful husband has children and dies without having made a will, then his wife gets the chattels and the first $25,000 as before, as well as a third of the residue, while the children share the remaining two thirds.

This is where the trouble can start. A widow can easily find that the major asset left her is a

house, but because of disagreement among the children as to its sale she cannot get access to the money to which she is entitled. She can also find herself without a home. If .there are no children of the marriage, and the deceased has no living parents, then the widow receives the entire estate, in the absence of a will. Is there any time the State is the beneficiary? According to a Public

Trust spokesman, when a man dies without leaving a will, his parents are dead, there are no other blood relations (brothers, sisters, uncles, aunts and so on), his property goes to the Government.

This can happen if a person has died and a blood relative who would benefit is alive but living somewhere overseas and cannot be traced. The missing beneficiary who returns to New Zealand to find that his longforgotten dear Old Aunt Agatha, who overlooked making a will, need not despair that he money has gone to the Government for ever.

He can ask Treasury for his entitlement, according to the Public Trust, and provided the formerly untraceable nephew can prove his claim, there should be no problem about the money being paid over. A widow who finds that her husband did not make a will, and that her children receive two thirds of the estate (after the first $25,000), does have a claim under the provisions

of the Family Protection Act to correct the in* justice, particularly if she is left in dire need. In some cases the Social Welfare Department could urge this course. Few people realise that marriage automatically revokes a will. In other words, the terms of a will made before marriage do not apply even if another is not written afterwards, except in the special case of a will made in con-

templation of marriage. Otherwise, the usual conditions applying in the absence of a will would be followed.

Arguments can easily arise when couples separate and no will has been made. Take the case of a wealthy wife whose husband is living apart from her. She dies without making a will, thinking perhaps that her children will receive her property, when in fact her husband may be the principal beneficiary. When do you make a will? One lawyer advises: as soon as a person reaches adulthood, legally 18. When marrying, either party can make a will, irrespective of their age. The lawyer also advises that a will be made on marriage, pointing out that there is a duty on a husband to ensure that his wife and children are adequately provided for after his death.

In these days of women’s liberation, however, a wife could consider she is not in need of such protection. And

again, it could be argued, the duty to provide only applies if a wife is in danger of being inadequately protected.

These days, the old practice of reading a will in solemn tones to assembled relatives of the deceased appears to have largely died out. The lawyer said that in 22 years of practice he had not done so. Usually he wrote to beneficiaries and the executor, who was the person responsible for carrying out the terms of the will. Usually, a lawyer, the Public Trust, or a trustee company will help a person make a will, and provided there is a thorough understanding of the wishes involved, this procedure is advisable. Use of appropriate legal language can sometimes prevent long legal wrangling later.

Except for servicemen on active service and sailors while at sea, the law provides that to be valid a will must be signed in the presence of two witnesses. The shortest will on record is said to have read: “All to Mum.”

People do, of course, alter their wills during their lifetimes. Some in their later years do this several times. To cater for the wish of an elderly person who wants to share out pictures, silver, antiques and other knick-knacks among children —- and who may change her mind several times — one lawyer suggests a compromise which avoids a will with long lists. The will simply nominates a trusted friend to share out the property when the owner dies, in the way she would have wanted.