‘Peter Perfect’ on the Mountain, Peter Imperfect off the Earth…
Everyone — whether in a high-risk occupation like Peter Brock or not — should leave a valid Will.
There are several clear, clear reasons for this, but perhaps the “kindest” one is to avoid any legal wrangling, which only fuels the heartache a family suffers in its loss.
But aside from what has unfortunately become “chip wrapper fodder” and gossip-magazine repasts, the mess Brockie left of his estate should prod everyone to re-examine their own Wills.
The tangled trail
Firstly, a quick wrap up of the basics of why the car racing champion’s “estate planning” was a textbook example of how not to leave things after your death.
Not only did Peter Brock not leave a clear, unambiguous Will, he left this:
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a 2006 unsigned, half-finished Will;
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a 2003 “DIY” signed and witnessed Will – that left spaces left for his wife to fill in after his death; and
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a 1984 solicitor’s Will that included his parents as beneficiaries.
Changes in his personal life not long before he died complicate the above. Greatly.
In 2006, 12 months before he died, Peter Brock left his wife of 28 years, Bev, and moved in with Julie Bamford. However, he and Bev never actually married, with Bev taking Brock’s name via deed poll.
Julie wants part of his estate, yet she’s only mentioned in the unfinished 2006 Will. Non-contentious Grant of Probate cannot be given on an unsigned Will, so the courts decided Julie was not entitled to anything.
Her argument was that despite the latest Will being unsigned, it clearly states she should get the house they lived in together. Brock’s 3 children (although the eldest, James, is only Bev’s child from a previous relationship) believe if their father had really wanted Julie to have his assets, he would have signed the Will.
The lessons for all
The tangled mess outlined above should be enough to propel every single person to revisit their own arrangements, bearing in mind these legal facts:
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In most states, marriage automatically revokes a Will — but divorce doesn’t. However, legislation in some states has now switched this “old” way of things around. That is, divorce revokes a Will but marriage doesn’t. Either way, if you’ve married, divorced, remarried or have come out of a long-term relationship, you need a new Will.
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If you are in a de facto relationship for more than 2-3 years, the courts may deem that the same as a marriage — and that timeframe may be shortened by having a baby or buying a house together. Do you really want your boyfriend of 4 years to get everything after you die? Wills generally don’t “lapse”. If you have an old Will hanging around from 1974, it’s probably still valid. Even if you divorced your ex-wife in 1982, the gifts to her in that Will may still be enforceable.
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Only certain people can challenge your Will — depending on which state you’re in. Usually, offspring from your first marriage can’t challenge your second husband’s Will.
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Wills are “proved” (granted probate) in the Supreme Court. That means any challenges to a Will are conducted in the state Supreme Court. That means big lawyer fees. (This is the only positive spin of this whole mess — and it’s for lawyers, not families). The average cost to your estate of a challenge to your Will — successful or not — is somewhere over $250,000. Your estate generally pays the lot — so there is less risk for the aggrieved person that got nothing.
Most of us can explain our post-death wishes fairly easily: in the Will you say that your ex-wife gets half, the kids get half, your new girlfriend gets nothing, and so on. Unfortunately, “dead men tell no tales”, as the saying goes.
Everyone else will lie about, forget or muck up what you told them.
Your ex-husband (whom you hate intensely) will tell the Court that the day before you died, you had reconciled your differences and that you wanted him to have everything. Your kids will probably back him up.
For good reason, the authorities can only rely on what your Will says. You should have a specialist tax lawyer draft your Will if:
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you have children from separate partners
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you have been married more than once
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there is a likelihood that someone may challenge your Will
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you have recently separated
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you have a family trust
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you have assets, including your home, of $1m — in which case you consider a Testamentary Trust in your Will, or you will leave a greater tax liability to your family
Not “being around” after you’ve died, is every reason to do something about it now.
Source: The Risk Store, article by lawyer Brett Davies, with many years experience in Estate Planning
Tags: Estate planning, Will