15 October 2011 by

Why delay?

The reality of death is something many of us don't want to think about. Consciously or unconsciously, most people avoid the subject. After all, it's morbid and unwelcome, not something to dwell on. The exercise of drafting a Will brings our own mortality into sharp focus. So naturally, we prefer to skirt around the issue and put off making that Will for another day.

Most of us will make a point of drawing up a Will for the first time or updating our Will when we are about to do something we feel is risky. An impending overseas trip and when faced with the prospect of major surgery, are common examples. Of course it is prudent to take precautions at such times. But statistically, these events pose no greater risk than the things we do every day.

It is more common for people of an 'older generation' to draw up a Will. When we are younger, we like to think there is less risk of our dying soon. Intellectually, though, we know that death can be unexpected, not limited to advanced age or 'risky' activities. It is important to know that the death of a younger person, particularly when death is sudden, can have as great or even greater impact on estate planning. It is as important for a young person to have a Will and a solid plan in place.

Unresolved family issues are another reason for us to avoid preparing our Last Will and Testament. They force us to consider solutions and deal with family and financial issues that we may not want to face. For instance, a man who has remarried may be conflicted about how best to provide for his new wife and family without forfeiting the remaining capital for the benefit of the children from his former marriage. Or someone may be struggling to resolve what to do about a potential beneficiary's inability to handle money, but does not want to exclude or discriminate against that person.

It is human nature for us to sidestep unpleasant or uncomfortable issues, but there really is no need for us to delay when it comes to drawing up a Will. A seasoned practitioner will have encountered many similar problems and is in a good position to propose constructive solutions.

You may feel that your estate is too small to bother with drawing up a Will. Ironically, in many cases, drafting a Will for smaller estates demands specific skills to ensure that it caters adequately for those to whom we have legal obligations. It also happens that some estates are far greater at the time of the testator's death than was the case when the Will was prepared. The asset base may have grown in the meantime, through an inheritance or the proceeds of pension funds, life insurance policies and other investments.

There are so many demands on our time and energy - our work and family commitments and other obligations; so we neglect to set aside the time to draft a Will. It seems ironic, though, because with a proper estate plan in place, we create the foundation for preserving the fruits of our labour for the benefit of the loved ones we leave behind.

There was a time when trust companies were prohibited from charging for the service of drafting a Will and so offered the services for free. In our opinion they have done the public/ testators a disservice by creating an expectation that one should not have to pay for a Will.

Many of us view legal costs as a grudge purchase. But consider the value of this objectively. Your Last Will is a vital document. A lifetime of work and prudent financial planning can be entirely undone if you die without a carefully constructed Will in place. The legal cost of undoing a flawed Will inevitably is a far more expensive prospect.

Johann Jacobs

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