The sad case or Arkie Whiteley – daughter of the Australian painter Brett Whiteley — illustrates the need to keep an up-to-date will.
Maybe people do not because think they are immortal; don’t want to think about death; or think that because they will not be around it does not matter.
Arkie’s will has caused great uncertainty and friction. The only certainty is that lawyers will take a significant part of the estate. Arkie’s will was, in fact, up to date. It was made on the day she died. But the fact it had to be made in such a hurry meant it has had some odd results.
Arkie died aged 37 of adrenal cancer. It is incurable. Patients usually get about three months’ notice of death. Still Arkie left the will – literally – to the final hours. Her estate was valued at $14 million. Remarkably much of that was inherited from her father in the form of artworks after an expensive and protracted court battle over uncertainties surrounding the will. You would think a family would learn.
Most of the assets went to Arkie’s mother, Wendy, rather than her husband of just two weeks, Jim Elliott. If Arkie had not made the will Elliott would have got the lot – there being no children.
Another $5 million in assets – paintings at her Palm Beach house — went in an odd arrangement under which two executors had total discretion to divide them among nine beneficiaries, including friends, ex-lovers and (bizarrely) one of the executors.
It may well be that Arkie’s faith in her executors is completely justified, but the clause invites and expensive legal battle. The beneficiary-executor would have to co-operate with the non-beneficiary executor in a division of the property which might include some property going to the former and none to the latter. The hypothetical results range from a sensible and fair split to a stalemate or a shutting out of eight beneficiaries.
The great English judge Lord Denning once said that people can lead happy, sensible lives until it comes time to write a will.
For a long time – from about 1930 to about 1990 – succession law took a back seat. This was due to the stability of the family. The spouse either got the lot or got a life estate and the kids shared the remainder. Sure, after 1965 divorce became more common, but it took a further 25 years before the divorcees started dying in numbers significant enough to provide the grist of succession cases in the courts. Also, since about 1950s rich business people often dealt with succession in a business context and much was transferred before death.
I recall the then Chief Justice Harry Gibbs lamenting the absence of succession cases – he was a succession expert – in the early 1980s.
Now with split families, second and third spouses, children of old marriages and younger children of new marriages, the conditions are ripe for long and bitter legal disputes over succession. Human affairs are so complex and so changing and humans are so greedy and jealous when it comes to the division of money that dispute and the anger which fuels it drives people to court. They fight until there is nothing left to fight about.
But will making is not an easy matter.
The formalities are complex enough. You must have two witnesses who must attest the signature of the testator while being present at the same time.
The language of a will can often have legal meaning with unforeseen consequences. For example, leases are personal property. “Issue’’ does not mean “children’’ but also grandchildren and great-grandchildren. A gift to “my issue’’ in equal shares could have awful unintended consequences. And the law usually prevents evidence about the testator’s intentions. The words are what count.
People often do not foresee the possible combinations of circumstances and different orders of death of their relatives which can leave someone unintended taking all or someone intended missing out.
Separation, divorce and remarriage can create difficulties for those without wills. For example, if remarrying husband and new remarrying wife died in the same accident, the younger (say, the wife) is deemed to survive longer. She would take all her husband’s estate. It would then flow to her children from the previous marriage and his would miss out (unless they were dependent in which case they could get a court to order some maintenance from the estate).
Bear in mind, marriage makes previous wills void, so it is common for a newly remarried man loaded with property to go will-less into the world.
Separation has no effect on a will. So it is common for separated people to be surprisingly generous in their valid wills to their estranged partners.
Divorce, however, makes gifts to former spouses void, leaving the rest of the will valid. The spouse’s gift would go on intestacy to children or to any clause in the will dealing with left-over property (again a trap for testators thinking they might be living little in a residual clause).
The rules on intestacy are blunt. In truncated form they are: spouse takes the first $150,000 and the rest if there are no children, half the rest if there is one child, or a third the rest if more than one. If there is no spouse, children (and their children in relevant shares) take first; if no children, parents; if no parents, siblings and their children; if no siblings, uncles and aunts and if none of them, the state. And if some of the taking children are infants, major difficulties arise if the inheritance is a business. Sometimes a profitable business (and therefore one with some risk) can be wound up by a public trustee – and the infant loses big profits.
It is better for those who survive you for you to have a will. List all your property and all you relatives and friends you might want to leave something. Take them to a solicitor. (There is a good wills kit in Victoria but not in the ACT.) A solicitor now is cheaper and less anguish than a court case later. But if you are dead – who cares?