Get Your Affairs in Order! Why Even Young People Need a Will


Note: Just a nice warning that there is discussion of sensitive subjects, such as suicide and mental illness. Please call Lifeline on 13 11 14 if these discussions cause you distress.

Turning 18 is a significant age in Australia, with many adult rights and responsibilities bestowed to an individual. And then also realising how hard it is to successfully ‘adult’.

One of these ‘adulting’ tasks is writing a Will and Testament. Young adults often do not have a formal Will created, whether it be of the perception that it is a task for when you are much older, or that they are not wealthy enough to bother. The University of Queensland’s Having the Last Word report in 2015 highlights this as an area of concern.

Regardless, everyone needs a Will. And there are a number of statistics and cases that highlight this fact.

I should probably clarify what a Will is, assuming some young people may read this and not know. The Public Trustee of Queensland defined a Will as:

a legal document that outlines how you would like your assets (estate) distributed when you die and appoints the person who will be responsible for the administration of your estate. The people who receive your estate are referred to as your beneficiaries.’

I could go on and talk about digital technologies from this, but I want to draw attention to the complacency of writing a Will in young adults, and why it is good to have a ‘first copy’ out there before you go full-blown ‘adult’. Like get married, or buy a house, or have kids. There is more to consider before that.

1. Causes of Death in Younger People

Firstly, the AIHW has released statistics suggesting that the main causes of death common amongst those between the ages of 15-44 are either injury, accidents (motor vehicle or other), or suicide. These causes of death can be hard to predict, in comparison to other age related conditions or illnesses.

So there really is a chance you could be hit by a bus tomorrow. Or eaten by a shark. Or cliff diving gone wrong. Or hit by lightning…I guess. The point is: it is better to prepare for the unexpected than to wait until you are ‘older’.

There is concern that informal Wills are being created within individual’s suicide notes. which brings into question their capacity to make a Will and it be considered as valid. The case of RE Nichol [2017] QSC 220 needed to determine the intent of a man who drafted a text message, if it was meant to be a binding will or not before his death by suicide.

The case acknowledged that the format was not of a traditional will, and the fact that it was drafted and not sent was also an issue for discussion.

Having to interpret a suicide note is both difficult and upsetting to those involved. This issue extends further into the topic of Testamentary Capacity.

2. Making a Will with Testamentary Capacity

Glancing into the potential future as well (sorry to be a downer), but let’s say you survive these causes of death, or your physical or mental health goes downhill. To make a will, you need what is called ‘Testamentary Capacity’, which is basically an understanding of what you are doing under the law to create a will. The Succession Act 1981 (Qld) s21 allows the Court to make, alter or revoke a Will if they make a determination that the party lacked Testamentary Capacity.

Most often testamentary capacity can be an issue with older people suffering from Dementia or Alzheimer’s, but can still apply in young people affected by physical or mental health conditions.

A prime example of a mental health condition that could affect testamentary capacity is an onset of Schizophrenia, defined by SANE Australia as:

‘an illness that disrupts the functioning of the human mind. It causes intense episodes of psychosis involving delusions and hallucinations, and longer periods of reduced expression, motivation and functioning.’

The typical onset of Schizophrenia shows between 16 and 30 years of age, and can affect the individual’s ability to understand facts and information to make important decisions alongside other symptoms.

Another way testamentary capacity may be questioned is in the circumstance of any type of brain damage. Brain damage could occur from a failed suicide attempt, drug overdose, illness, injury or accident (see how we already talked about these things before?).

In the decision of MPL [2016] QSC 61, the court deemed that the 24-year old didn’t satisfy all of the requirements of Testamentary Capacity in creating his will, as his cognitive function had been affected by his traumatic brain injury. Luckily in this circumstance, his mother created a Statutory Will that mirrored his initial Will, and the Court was able to use that to avoid dying intestate.

Let me get into the slightly less grim section now 🙂

3. You probably have debt (but also some assets too)

We can often imagine that as young adults we have more debt than assets, leaving us with a negative net worth. But that depends!

Our main debt as a young person is often a HELP debt, and there is a theory circling around that this is taken out of our estate when we die. Fear not though, as the Australian Government only makes you pay the last financial year’s percentage of repayment when you die. The rest of the balance is not required to be paid.

I'm going to make sure my HECS debt is so large, that I will be confident I will be dead before it's paid!

Posted by Drazik Blonkavich on Friday, 13 October 2017

If you hold any bank loans, check whether you have a Consumer Credit Insurance policy paid within it. This insurance is intended to pay out the existing amount owing on the loan, or sometimes up to a certain amount. If this is the case, then these debts will not come out of your estate.

Let’s talk about some money you MAY have! Your employer (if you have worked since turning 18) has probably made you open a Super account. There could be a balance in there, as well as a Life Insurance policy included where the premium is paid from your Super. Go and have a look, because you may have more entitlement there than you expect.

For example, I hold a Life Insurance policy that can be paid out to $165 000. Then include the Super balance and WHOA, that is a bit of money.

Note: it was hard to find a good life insurance meme, but I like this one a lot!

And then there is obviously other personal items such as motor vehicles and personal belongings. You, and only you, can decide how these are distributed. And what strange requests you can make in your Will too…

May I suggest a YouTube video with some unusual Wills to get you thinking?

Hopefully this has been some sort of motivation to be well prepared and have your affairs in order. The Public Trustee of Queensland can help you in finding more information and taking the steps towards writing your wonderful Will (which will be a fun few hours of your life!).

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