The myth of testamentary freedom

By Pamela Wardle, Senior Solicitor

Many of us believe that we may distribute our assets as we wish upon our death.  This is true but only to a limited extent.  There are various occasions when we must consider carefully as to whom and how we distribute our assets.

For example, if we choose to omit as a beneficiary under our Will a spouse, child or dependent, the omitted person may make a claim for further and better provision from our estate (called a testator’s family maintenance claim).  The term spouse may include anyone to whom we are still married and not divorced (even though we may have been separated for a number of years) and de facto partners.  Children include biological and adopted children but may also include step-children in certain circumstances.  Even leaving a person a small amount under our Will is unlikely to be sufficient to avoid a testator’s family maintenance claim in most circumstances.

The way we hold our assets may also influence to whom they are transferred upon our death.  For example, if we hold anything as a joint tenant, the asset will go to the person with whom we hold the asset despite anything to the contrary in our Will.

We have also previously written about superannuation entitlements and the necessity for being careful that we have a nomination for our entitlements which binds our superannuation fund.

It is important to consider how and with whom we hold our assets and to whom we may have obligations after we die so we may ensure our assets can be distributed as we wish upon our death as much as is possible under the law.