Susan burst into tears when I asked her who she would want to look after her children if she died when they were still young. I was taking instructions from Susan and her husband Peter in preparation for drafting wills.
Susan’s reaction was extreme, but it reminded me of the tremendously sensitive nature of estate planning. Susan was young and healthy. The likelihood of her dying while the children were young was minimal, and she had a lovely husband who was a wonderful father to their children.
It also reminded me of another client Catherine – a single mum – who consulted me about guardianship of her eight year old daughter. Catherine was very ill, and she was going to die from her illness.
She had no assets, no life insurance or superannuation, and no property other than minimal personal items. She didn’t really need to have a will. Or did she?
It was vital to Catherine that Lucy would have the legal guardian of Catherine‘s choice, to ensure that Lucy’s best interests would be taken care of. A testamentary guardian was required.
A testamentary guardian may be appointed in a will. The appointment only takes effect on the death of the will-maker.
The effect of the appointment is to transfer the deceased parent’s powers, rights and responsibilities for making decisions about the long-term care, welfare and development of the child. It provides the guardian with daily care authority for the child if there is no surviving parent, and no-one else have daily care authority.
In Catherine’s case, as Lucy’s birth certificate did not record the details of her father, this meant that there was no surviving parent.
So, on Catherine’s instructions I prepared a will for the sole purpose of appointing a testamentary guardian for Lucy.
A few weeks later, when Catherine died, the guardian appointed in Catherine’s will took responsibility for Lucy’s long-term and daily care, with the legal authority of the appointment in the will. The making of the will avoided the need for the guardian to apply to the court for orders in that regard, and Catherine had control over this most important issue.
Catherine did need to have a will, as do all parents. Life is often difficult and uncertain, and the security and well-being of our children is of great significance. Making a will was a simple solution to a very difficult problem for Catherine and she was greatly relieved to have a valid will in place to give effect to her wishes about with whom her daughter would live with after she died.
What many separated parents do not realise, is that if one parent dies after they divorce, while the children are still under the age of eighteen, unless there is a valid will in place in which an executor is appointed, the other parent has a right to administer the estate of their deceased ex-husband or wife, as guardian of their children, and to hold the proceeds of life insurance or superannuation on trust for the children. This is often disastrous.
Yes – everyone needs a will.