The recent case involving the estate of American soul music legend Aretha Franklin highlights the importance of ensuring all family members–especially the sick and elderly–are aware of the details of their Will, says Australian Unity Trustees’ National Manager of Estate Planning, Anna Hacker.
Ms Hacker says too many Australians apply a “set and forget” approach to the contents of their Wills and instead need to be conducting regular reviews, often with relevant family members.
In the case of the estate of Aretha Franklin, despite an agreement to leave control of her estate to a relative, Sabrina Owens, a handwritten Will discovered under cushions in her Detroit home could instead see Franklin’s son, Kecalf Franklin, serve as the executor. The matter remains before the courts, with a judge determining whether the handwritten note, which contradicts the formal Will, is the late singer’s handwriting.
According to Ms Hacker, the situation in the Aretha Franklin case is sadly not uncommon, and a number of recent Australian examples highlight the need for routine assessing of Wills and for the testator of the Will to inform any beneficiaries of their involvement.
“It’s understandably not the nicest of conversations to be having with loved ones but it does ensure that everyone involved is aware of their responsibilities and the specifics of what they are – and aren’t – legally going to inherit.
“We see far too many cases where the testator of the Will either hasn’t formally executed the intended Will so as to make it a valid Will, or has perhaps changed their mind regarding the distributions in a Will and hasn’t advised family members accordingly.
“It’s already an emotionally draining time for all involved, so it’s recommended that testators manage any fallout by keeping their Will up to date and letting the relevant parties know of any changes, if it is appropriate to update beneficiaries,” she said.
Ms Hacker cites one case involving an informal Will application in which the testator had previously had a formal Will prepared and understood the formalities. She then prepared a document which contained some testamentary intentions but kept attempting to meet with a lawyer to have a new Will prepared. The format of the informal document was similar to that of a Will but it did not appoint an executor. At the same time as she prepared the informal document, she engaged with a funeral director to organise a funeral plan and notified the funeral planner that a solicitor would be her executor. The solicitor however was not made aware of this.
“The Court finding was that this was an informal Will on the basis that she had written it in a more formal way, she dealt with her assets, and there was an intention for it to be a final Will,” Ms Hacker said.
Another example involved an informal Will application in which the testator had written a formal Will a number of years ago which divided her estate between various charities . A later informal document was found among bills in the testator’s kitchen after she passed away.
The informal document purported to give her property to family and then make other various gifts.
“In delivering its judgement, the Court found that the document was not intended as being her last Will and so was not admitted to Probate.”
Ms Hacker said with both of these cases, and others like it, the time, expense and angst could have been avoided with some simple planning.
“The basic premise of a Will is to legally grant the expressed wishes of those who pass away, so in order for this to be as effective and straight-forward as possible, people really need to be diligent with regularly updating the Will document and notifying those most affected – their loved ones,” she said.