Written by Malcolm McColm, McColm Matsinger Lawyers.

Many years ago my father, the centre of my then universe died suddenly at age 51.  He left three teenage children, all of whom he loved dearly.  He had no Will.  In his time he was not an exception.  Decades later he is still not an exception. Why is it a vast number of people do no estate planning during their lifetime for the family they love? I have been involved in estate planning for clients for more than thirty decades and this question continues to visit me.  

Weekly I speak with clients whose lack of planning in one of the most important aspects of their lives astounds me.  Singles and couples in their thirties, forties and fifties who have never had a Will.  Clients who “are sure they have a Will” but have no idea where that document may be.  Individuals who have not considered the affect their divorce, marriage, remarriage, separation etc may have upon their Will and “Will Kit” documents that are worse than having no Will at all. The list goes on...

Why are we so negligent towards our families?  

One obvious answer is that we are just scared to die.  In Australian society we do not do death well.  This is unfortunate because it is one of the more difficult things to avoid.  However, from observing the behaviour of clients over many years, I believe that facing our own mortality is a significant cause of us failing to have a Will when we die.  

When we hear news of people we know being involved in some life threatening diagnosis, accident or experience there is often schadenfreude – some small relief that it did not happen to us.  Are we concerned therefore that by engaging in some acknowledgement of our own mortality – such as estate planning – we shall somehow commence a process leading to our ultimate demise?  Will those pagan gods that we do not acknowledge, bring their wrath upon us by our mere acknowledgment of their existence?  Will our existence be prolonged by ignoring its end?  

Can people be persuaded to overcome these fears by invoking the corollary:-

    “You would die if you knew the consequences of not having a Will!”

Whilst I have created some effective devices to assist clients overcoming their fears once they are in my office, I have not yet discovered the shtick (if that is what it shall take) to motivate people with these issues to commence the legal preparation for their death.  

No doubt there are other reasons that cause people to fail to estate plan.  I doubt that this was the chief cause for my father – a decorated WWWII pilot, shot down over Europe, who faced death on many occasions – to not prepare a Will.

Perhaps hedonism, our culture of instant gratification and an unerring belief in “tomorrow” might paradoxically be a disincentive, particularly to the young and fit, to deal with issues that are perceived as related to elder life, frailty and future medical diagnosis.  

The Swiss factors – time and money - are of course other disincentives.  

The cost of time – time off work for appointments with your lawyer, time to see your medical practitioner to complete an Advance Health Directive – is a negative.  

And of course the monetary cost.  Good estate planning does not come free.  

By law your Will can be prepared by only two persons – yourself or a qualified legal practitioner.  

The Courts have placed clear and onerous obligations on legal practitioners preparing Wills and in order to meet the standards required by the Courts, a legal practitioner is unable to finalise your estate planning for even a simple Will without spending a minimum of 2 ½ - 3 hours.  Depending upon your personal circumstance, structures and assets many times this amount of work may be required.  

For those persons who do not have, or do not wish to allocate, financial resources for their estate planning there are other options available.  The Public Trustee and charitable organisations (Cancer Council Queensland, Red Cross, and Salvation Army etc) offer estate planning options.  However, these alternatives will bear an ultimate cost to your estate greater than your own lawyer’s estate planning bill and you should make careful enquiry of the true cost at the outset.  

For those vast number of people who shall continue to die without preparation of their affairs there is however some good news.  The intestacy laws under the Succession Act will distribute the estate of such people amongst their nearest surviving next of kin. The bad news is that some family member will need to apply for an order from the Supreme Court to administer the estate or in cases such as my father’s estate – leave it to the Public Trustee to administer.  Neither of these alternatives is, in my experience, the most desirable.

Ensuring that you have a valid Will and Enduring Power of Attorney in place is an obligation that you owe, not to yourself, but to your loved ones.  It is time and money well spent.  

I urge everyone who reads this article to review their personal family’s estate planning needs and ensure that you have a current valid Will and Enduring Power of Attorney that meets your desires.  If in doubt, see your lawyer to have them prepared.  If you do not have one then visit a good lawyer who can.