Wills, wishes and lawyers … can we control our assets from the grave?

Recent legal wrangles have shown writing a will does not guarantee our wishes will be executed

PUBLISHED : Tuesday, 02 April, 2013, 12:00am
UPDATED : Tuesday, 02 April, 2013, 3:45am

Disputes over estates of the deceased often bring out the worst in human nature. With contention over the estates of late Canto-pop diva Anita Mui Yim-fong and late billionaire Nina Wang Kung Yu-sum, you might question the value of a will and paying a lawyer to write it.

Generally, we are free to do what we like with our property - we may sell it, give it away, or even destroy it, so long as this causes no harm to others.

However, there are many restrictions on what we can direct to be done with our property after our death.

A lawyer should be able to advise on whether our wishes are enforceable. For example, the special requirements necessary to make provisions for pets, or whether your desires could be challenged. While you can leave your property to whomever you wish, if you do not provide for your dependants then they may ask a court to vary the terms of your will.

So, if you have fallen out with your wife, don't think you can just write her out of your will. Generally a court would ensure that a widow was left in no worse position on the death of her husband than she would be in the event of a divorce.

It is also likely that "you can't take it with you" - ordering favourite items placed in your coffin may not be binding on your representatives.

Similarly, trying to prevent others from enjoying your property may not be possible. In a case in the United States, a direction in a will to destroy the deceased's house was considered against the public interest and so not followed. In England, a direction to board up a house for 20 years and prevent anyone entering it was ignored and the house was "unsealed".

Even final wishes for the treatment of your body may not be enforced by the law. In a 19th-century English case, Henry Crookenden specified in his will that his body was to be given to a lady friend, Eliza Williams, transported to Italy, cremated and his ashes placed in a Wedgwood vase (at the time it was unclear whether cremation was legal in England).

Unfortunately his widow and son (executor of the will) had Henry's body buried. Eliza resorted to subterfuge to obtain a licence to have Henry exhumed and carried out his wishes. When Eliza claimed her expenses from Henry's estate his son refused payment. The consequent litigation confirmed that executors are only under an obligation to lawfully and decently dispose of the body, they do not have to follow the deceased's instructions - thus Eliza was not paid.

You may ask why it is worth making a will, if there may still be disputes, consequent costs and your wishes may not be carried out. However, many thousands of wills are carried out as directed every year and a lawyer should be able to minimise disputes and consequent costs, and ensure the deceased's wishes are carried out as far as the law allows. In addition, if you employ a lawyer to write your will and anything goes wrong your relatives may be able to sue.

Steven Gallagher is professional consultant and assistant dean (undergraduate student affairs) of the Faculty of Law, Chinese University.



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