The Kyle & Jackie O Show recently ran a segment discussing how Kyle should leave his Estate when he passes away. Should he make a video Will? Should his Will include a treasure hunt? Are you allowed to ask your Trustees to eat your ashes for your money?
What are the rules and how far can we stretch them to make all of Kyle’s weird and wacky wishes come true when he passes away?
Over the next couple of weeks, Marsdens will dissect Kyle’s ideas and perhaps, if Kyle reads any of these articles, he will be assisted by our advice. For anyone who missed this segment, please watch here: https://www.facebook.com/kyleandjackieoshow/videos/do-you-want-to-be-in-kyles-will/404551504294451/.
Knowing your Assets
Kyle says, "I don’t even know what I own sometimes.”
So, is it important to know the ins and outs of everything you own when making a Will? Do you need to account for every knife and fork in the house? The short answer, no.
A simple way to think of it is: you don’t need to know the exact value of your shares each day, but you should know who you hold shares with and an idea as to how many shares you hold. Similarly, you don’t need to know the exact dollar and cents you have in your bank account, an estimate is absolutely fine.
What is important though, is that you have an understanding as to how your assets are held. Are they held in your sole name or jointly with another person? This will make a difference to how your assets are dealt with when you pass away. For example, if a property is in your sole name, you can gift it to who you wish under your Will. If your property is held with another person as joint tenants, it will automatically pass to the surviving owner upon your death. You cannot gift your share in the property to another person in your Will.
It becomes more important to know the specific details of your assets if you want to make a specific gift in your Will.
For someone of Kyle’s wealth, assets may be held in trusts and Self-Managed Superfunds. Kyle should have a reasonable understanding of those structures, as assets in superannuation, trusts and companies are not owned personally and can’t be gifted directly under your Will.
So Kyle, you can still make a Will even if you don’t know the exact details of all of your assets but you do need to have a good understanding of what assets you own, and how they are held.
Kyle suggested that he might put on his dressing gown, sit in a chair and make a video as his Will. Can he do this? Can anyone do this?
In 2015, for the first time, the Supreme Court of NSW accepted a will recorded on a DVD to be a valid Will. The woman was 85 years old and was unable to attend her solicitor’s office to sign a Will. She wanted to amend her Will to give more of her Estate to two of her six children, to reward them for their help during her old age.
The Court upheld the video as a Will, stating that the video was a “document” and that the woman knew and approved of the content of what she directed in the Video. The Court was also satisfied that the Will was made voluntarily in the presence of a witness.
While it worked in this situation, video Wills have been refused in many other cases. To make a valid Will without the risk of the document (or video) not being recognised as a valid Will , the document needs to be in writing and signed by the will-maker, with two witnesses. If this criteria is not met, the Court may consider the document to be an “informal” Will, which is how a video Will is classified by a Court.
If Kyle were to make a video Will, it would be an expensive and lengthy process for the beneficiaries of Kyle’s Estate to have the video Will upheld by the Supreme Court.
Noting the time Kyle spends in the US, if Kyle holds any assets in the US, additional consideration will need to be given to whether he should make a Will in Australia and in the US. This will depend on the nature and structure of his assets both here and in the US. As a result of these additional considerations, Kyle should not contemplate a video Will.
Kyle, you are great on camera, but if you really want to make a valid Will, put the camera down, pick up the phone and call an experienced Estate Planning lawyer.
Next week we will look at what kind of things you can make people do before they receive your Estate. That truly is power beyond the grave.
For all of your Estate Planning needs, please feel free to contact our Estate Planning Department on (02) 4626 5077 or at firstname.lastname@example.org.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.