How important is timing when making a Will?

By Brian Herd / 19 April 2023
4 min.

Do you have a Will, or is it a task you still need to sort out – and one of those jobs that sits in your ‘too hard’ basket? HopgoodGanim Partner Brian Herd is recognised as one of Australia’s leading experts in the areas of elder law, retirement, disability and aged care. In this article, we feature an adapted extract from Brian’s book, Avoiding the ageing parent trap, with insights about the importance of timeliness in making a Will and getting your estate planning affairs in order.

The law of late

Being late is almost fashionable for some of us and I love clients who are late – or even better, clients who are too late – it can be good for business.

In life, you can be late for all sorts of reasons and for all sorts of things – such as an appointment. But, being too late for your appointment with the future is particularly problematic. It leads to so much more crisis management, family disarray and the stuff of legendary, lengthy and costly disputes. Curiously, I tend to find that, the wealthier you are, the later you are for this important appointment.

Wealth seems to create a psychological, if not a practical barrier to being on time. It is hard to confront the future and even harder to make decisions about it in advance. Wealth gives a subconscious sense of comfort – money will get me out of trouble. But, it actually just adds layers of complexity which feeds the aversion syndrome.

Here’s a story:

  • Bob and Jean were wealthy and elderly.
  • They had built up a profitable business and property portfolio over their long lives.
  • They had the other usual accoutrements of wealth – a company, a family trust and a self-managed superannuation fund.
  • So wealthy were they that they provided handsomely throughout their lives for their adult children with generous financial assistance, in varying amounts for such exigencies as buying a child’s first home, getting them out of sticky situations, including for one child, a marriage etc.
  • Two of the children were employed in the business.
  • None of the children had emulated their parents’ success, either in business, or in their lives – two of them had children from more than one marriage.

For each of them, contemplating what to do about their Wills was daunting, so much so, they hadn’t managed to do one when, unexpectedly, Bob had a heart attack at the wheel of his Mercedes and died shortly after in hospital. Tragically as well, Jean died four days later after a massive stroke and heart failure in the same hospital. Mind you, they (and one of their children) had been to a presentation I gave on the subject some three years before at their local Probus Club and, according to the feedback I received from them at the conclusion of the presentation, they were enlivened, emboldened and inspired to do something – hmmm.

We became involved when one of their children was going through their parents’ personal things and found one of my handouts from the presentation. This was not the life legacy that Bob and Jean wanted to leave, compounded, as it was, by having:

  • no Will;
  • no succession plan for the business;
  • no superannuation death benefit nominations;
  • no idea on who would control the family trust; and
  • no idea of what do about those ‘loans/gifts’ to their children.

They left a veritable smorgasbord for a lawyer’s picnic (more than one) and family disarray. The only certain beneficiaries of their estates were the unintended and undeserving, people like me. If only the children, just one, had sought to prompt them to do something which was the clear message from the presentation where, remarkably, one of the children was actually present!

Brian Herd won Solicitor of the Year (Large Firm) at the Queensland Law Society Excellence in Law Awards 2022. He was awarded the 2021 Australasian Journal on Ageing (AJA) Book Award after publishing his book, Avoiding the ageing parent trap, which is available to order from Booktopia.

Estates and succession team

HopgoodGanim’s Estates and succession team provides careful, considered and precise estate planning and succession advice to ensure family and business assets are transitioned as intended. The team designs estate plans for clients, in addition to supporting with estate administration, estate litigation and SMSF matters. You can find out more about Brian’s expertise and reach out to the team with any enquiries related to SMSFs and broader estate planning.

19 April 2023
Key Contacts
Brian Herd
Brian is a Partner in our Estates and Succession team.

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