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Carefully select the beneficiaries of your Will

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A recent case highlights the importance of having a Will and carefully selecting your beneficiaries.

The Supreme Court case of Re Rowlings; Fraser v Thom (23 December 2010) highlights the importance of having a carefully thought out Will.

Carri-Ann Rowlings and Geoffrey Rowlings, a married couple, died as a result of a head on collision between their vehicle and another. Section 184 of the Property Law Act 1958 (Vic) covers the situation where two or more persons have died in circumstances where it is unclear which of them survived the other, and states that the younger shall be deemed to have survived the elder.

As neither had a Will, their estates would be distributed in accordance with a statutory formula. If Mrs Rowlings survived her husband, then her estate went to her parents. If Mr Rowlings survived Mrs Rowlings, then his estate would go to his 5 year old daughter, Mrs Rowlings’ step-daughter. The Court could not determine which of them died first and applied Section 184 in determining that Mrs Rowlings – being the younger spouse – died last.

The order of death was important in this case because Mrs Rowling had assets of $272,000 and Mr Rowling had no assets. The formula distributed Mrs Rowlings’ assets to her parents, but if Mr Rowlings had survived his wife, all her assets would have gone to his daughter with whom she had no relationship.

Does your Will contemplate further beneficiaries to cover the circumstance of the simultaneous death of your immediate family? If not, then your estate could also be subject to the arbitrary statutory formula. Please contact one of our Wills & Estates lawyers to discuss making a Will or updating your existing Will to cover these circumstances.

Author: Andrea Olsson

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