Does your Will allow for the unforeseen death of your beneficiaries?
Many spouses prepare their Wills without contemplating what may happen if they pass away together and whether there is sufficient flexibility in the document they have prepared to account for this circumstance.
Where spouses pass away at around the same time (for example, in a car accident), and medical evidence cannot conclusively determined who passed away first, the Succession Act in Queensland provides that the younger of the two people is deemed to have survived the other by one (1) day.
In a recent Queensland case, the Will of the male spouse indicated that his wife was to receive all of his estate unless she predeceased him. They were involved in a car accident and she was deemed to have survived as she was the younger of the two. Accordingly, she did not predecease her husband and issues arose as to who was entitled to the estate based on the interpretation of the wording of the Will.
The Court was able to use Section 33B of the Succession Act to interpret the Will so as to determine that the intention the wife pre-decease the husband also extended to cover the scenario that she passed away within thirty (30) days after him, which was the case. Accordingly, the Court ruled that the residual beneficiaries named in the Will (ie, those people who were to receive the estate on the basis that the wife had pre-deceased the husband, were entitled to the estate).
Had the Will not provided alternative beneficiaries if something had happened to the wife, the estate is likely to have been deemed as intestate and distribution would have been determined solely by the Succession Act.
A Will is a powerful instrument that needs to be properly drafted and to account for unforeseen circumstances and events to ensure that the people you wish to receive your estate, do in fact receive it.
If you have any queries about whether your Will is flexible enough to cover unforeseen circumstances, please contact our Wills and Estates team at McLaughlins Lawyers, your Gold Coast lawyers.
Author: Kristy Collins
Partner: Ian Kennedy