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My Will is simple - what could go wrong?

My Will is simple – what could go wrong?

Published on December 21, 2022 by Brett FatchesBrett Fatches

Tom prepared a Will. He wanted the Will to be straightforward and fair.

When he made his Will he was married to his wife. He had not been married or been in a relationship with any other person.

Tom and his wife had three adult children. Tom did not have any other children.

His Will was straightforward, it said

  • if he died before his wife, she would receive the whole of his estate.
  • If his wife died before him, he appointed one of his children as Executor and had the following clause:

I give the whole of my estate to my children, Rodney, Karen and Vicky as tenants in common in equal shares.

After he made his Will, his wife died. At a later time his daughter Vicky also died, who had a daughter. Tom did not have any particular relationship with Vicky’s daughter and they did not keep in contact with each other in any meaningful way.

After both his wife and Vicky died, Tom did not change his will and told his children they will be looked after in his Will. He told them:

 “as Vicky has died, that means you two will get the whole of the estate between you”.

Tom did not get any legal advice about his Will after the death of his wife and Vicky.

Tom’s children did not think anymore about the matter as everyone agreed it seemed to make sense that if Vicky was no longer living, then the estate would naturally be divided between the surviving children. Right?

Unfortunately, after his death Tom’s children were surprised when they found out that their father’s assumption as to how his estate would be dealt with was wrong.

Section 41 of the Succession Act 2006 (NSW) provides that because of the words used in the Will and the fact that when Tom died, Vicky’s daughter was still alive, Vicky’s daughter is to receive her mother’s one third share of Tom’s estate.[1]

This example demonstrates even with a straightforward estate and a “simple” provision in the Will, mistakes can still be made resulting in the Testator’s wishes not being fulfilled.

You may only get one go at getting your Will correct so that your wishes are given effect upon your death.  Please made sure you get proper legal advice when dealing with such important matters.



[1] Section 41 Succession Act 2006. Straughen-Nicholson v Straughen (2019) NSWSC 1389

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