There is a presumption often made by the Will maker that they can leave their personal chattels (e.g. artwork, family heirlooms, jewellery, furniture, etc) to their executors and family to sort out once they have died. A generic chattels clause is inserted in the Will and the rest is left to chance.
However, generic chattels division clauses, or not having a chattels clause at all, can cause a great deal of friction and angst for a grieving family, more often than it should.
It might be, for example, the executor is someone who also benefits under the Will – meaning that they may have an interest in the chattels or have certain loyalties within the family which can influence the allocations and distributions. Or it might be that there were ‘expectations’ held by some family members as to what was being left to them specifically, but it wasn’t included in the Will and that family member is both grieving and aggrieved.
Specific thought, instructions and drafting are needed with your lawyer when considering a Will.
Some options include:
- Including specific gifts from your chattels to a specific person.
- Stating in your Will that a list exists which allocates items in a separate document, and ensuring a list is kept with your Will covering off all the key items to be distributed to family or friends (noting the Court, when processing the application for probate, can ask to see the list if it is mentioned in the Will itself).
- Having a mechanism in the Will for the executors to control the allocation process (e.g. drawing names out of a hat as to who gets first pick and so on) – noting that nothing should be taken by family members other than in accordance with the Will protocols.
If a spouse survives the deceased and is a second wife/husband or long term partner, and the deceased has children from a previous relationship, the status and allocation of chattels requires some decisions. While the surviving spouse / partner has relationship property rights, the deceased’s children will consider that they have rights too, particularly to family heirlooms from the deceased’s side of the family.
As you can see, careful planning is needed and awareness that grief and emotions at the time of death can blur clear thinking. The clearer you can be in your Will regarding the allocation of your personal chattels, the better. To clarify how you want your chattels dealt with once you are gone or to discuss further options, contact our Private Client team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
