Hawes: The mess of dying

MARTIN HAWES
Last updated 05:00 24/03/2013

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OPINION: Someone once said to me that people were not afraid of dying because they feared the loss of their futures - it was the loss of the past that they were most fearful of.

Your past and your history is a great deal to lose. Your own story, your own part in others' stories, your particular interpretation of events, the things that you have done and the detail of your self-explanation - even the family photographs and other documents recording your and your forebears' lives - are at risk on your demise.

Sure, those left behind will retain certain things, but as the years, decades and generations slip by, more of you and your story will be lost - forever.

We all want to leave a little bit behind. Financially, this means that even those who would quite happily let the cheque to the undertaker bounce as they go out on the last dollar still want to leave some kind of legacy.

It is not necessarily how much money remains, but often the personal and family things that we leave (whether objects of value, objects of sentiment, good memories and thoughts) and the manner of the leaving.

Some people leave no legacy but a mess. No great memorial this. Just an inter-family fight which can be as vicious as any - bad blood, perhaps with litigation, which has no winners apart from the lawyers. These family fights are fuelled by history and fanned by jealousy - there are often old grudges, perhaps never before expressed although long held.

Although it may appear that they are about money, the real causes and motivations can run much deeper.

For sheer nastiness, they are worse than even the most acrimonious marriage breakdown, and just as impossible to heal.

Even when someone's demise does not lead to a family feud, poor estate planning (or an absence of estate planning) means ambiguity, uncertainty, big lawyer's bills and very high stress.

Few of us would want to be remembered for such chaos. I can imagine little worse than my children not talking to each other after my will was read; that my will was the (negative) turning point for the family.

Avoiding such calamities is not that difficult.

The first thing is to be very clear about what you want to happen and who is to get what. Discuss it with the family, then get your lawyer to put that into a will.

Dying intestate is probably the cause of the most difficulties in this area. The law has a process when someone does die intestate, but that may bear little or no relationship to what you would have wanted.

I am no great fan of DIY "will kits". The will is is an area where lawyers earn their money for their expertise, experience and the clarity of their communications. Sure, they occasionally get things wrong but usually they are much safer than a DIY approach.

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Second, remember the items of sentimental value. In the past it may have been the silver tea spoons and the box of photos but now the holder of your computer password probably has control of much of the family stuff like the photos. Such power (and a refusal to share it) may cause a feud.

Third, be careful what you say. A promise to "look after" someone in your will (especially for a service that has been rendered) can create rights which will be litigated after you have gone. Litigation equals mess.

Fourth, avoid having one or more family members in control with the others on the sidelines unless the will is extremely clear and there is no discretion.

The slightest discrepancy in such an arrangement is sure to create a "them and us" situation with resultant conflict.

Finally, think about whether there might be someone that you have a moral duty to provide for, such as a spouse or partner, child, grandchild, step-child, or a dependent parent. If you make sure that you carry out any moral obligations to close relatives, you can avoid the risk that someone might challenge your will after you die.

The best legacy is your worldly goods and other things of sentiment neatly passed on along with good memories and thoughts. That is a worthy aim and it seems to me that such a legacy is worth a bit of time and effort.

Martin Hawes is an Authorised Financial Adviser and his disclosure statement is available free of charge at martinhawes.com. This article is of a general nature and no substitute for personalised financial advice.

- Sunday Star Times

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