You Need a Will and Here's Why

By Mary-Jane Thomas, Crown Solicitor and Director, 7 February 2024

This is not my area of law (I have plenty of capable lawyers in my firm who do this work). However, it is an issue that is constantly coming up and something which constantly frustrates me. I cannot understand why people do not have a Will. And I really urge people to invest in an Enduring Power of Attorney.

Here is why.

Uh oh, I’ve had a stroke

Let’s say I do NOT have a will or an enduring power of attorney and I have a stroke tomorrow.

I am in Kew Hospital, still alive but in a coma. I have bills that still need to be paid, and decisions that need to be made about my ongoing medical treatment.

What do my family do?

One of my sons would have to make an application to the Family Court to be appointed as Welfare Guardian and Property Manager. This would involve him getting consents from other members of our family to confirm that they agree with him applying. If I had a husband and six kids, this could get complicated.

A lawyer is then appointed by the Court to act for me and to complete a report which will say whether my son is appropriate or not.

All this obviously takes time. The taxpayer will usually pay the appointed lawyer’s costs.

But if I DO have a Will and Power of Attorney?

However if I have an enduring power of attorney, there is a person that I have named and who I trust who can make all these decisions.

Let’s say I appointed one of my sons. He would need to get a medical certificate that I was incapable but then immediately he would be to be able to make decisions about my care. (Important Note: This doesn’t include being able to pull the plug!) He can pay my bills and make decisions about my property affairs.

So I get out of my coma and all is good – hurrah!

But what if I die?

If I die my attorney’s appointment ends, but if I have a will it’s all pretty straightforward. My will says what happens to my body, what I want to happen to my treasures be it jewellery or a car or a cat – who gets what. Tidying up my estate will still cost money but at least I have made it clear what I want and hopefully reduced the chance of fights in the family.

What if I die without a will, or it’s invalid?

In this situation, who gets what is decided according to legal rules, which set out who has priority to apply to the court and who gets what from the estate. So if you have a grandchild that has lived in the same town has you and never bothered to visit they will be treated the same as the grandchild that visited you, picked up your groceries when you couldn’t drive any more, listened without rolling their eyes at the same story they had heard 100 times, came to show you their school ball outfit and took photos with you. (For grandchild you can substitute child, niece, sibling).

Dying without a will is unfair to those you leave behind.