You may recall the tragic story of English businessman, Richard Cousins, and his family, who all died together in a plane crash in Australia on New Year’s Eve 2017.
About a year before his death, Mr Cousins amended his will by adding ‘Doomsday’ provisions. The provisions stated that if he and his family died simultaneously, the majority of his large estate would pass to his elected charity, Oxfam. Due to Mr Cousins’ foresight, Oxfam received their largest donation ever at that time of £41 million.
What are Doomsday provisions?
Doomsday¹ provisions (also referred to as fail safe, common catastrophe or calamity clauses) are back-up provisions in a person’s will. They set out what happens to your estate should all your beneficiaries pass away before they are able to receive their share.
This is the situation commonly referred to as Doomsday.
Why have Doomsday provisions?
The purpose of Doomsday provisions is to ensure that your estate passes to someone or somewhere you intend.
If a Doomsday/catastrophic situation occurs, and your will has no Doomsday provisions, uncertainty arises. The gifts in your will may fail and your estate (or the parts affected) may be distributed as if you died without a will (intestate).
In this situation, the intestacy rules set out in the Administration Act 1969 will apply. These rules set out who is entitled to your estate, even though they may not be beneficiaries in your will. Where your spouse or partner, and children have all died, your estate passes to your wider relatives in a set order, which can include:
- Grandchildren/great-grandchildren
- Parents
- Siblings
- Grandparents
- Aunts and uncles, or
- Half-aunts and half-uncles.
Ultimately, if there are no living beneficiaries to receive your estate, parts or all of it may pass to the Crown.
The prospect of such an outcome can be troubling to many people, particularly in the midst of increasingly complex family dynamics. If you have no Doomsday provisions in your will and all your beneficiaries are dead, your estate could be subject to administrative delay and litigation between those making a claim. The costs of these delays may be taken from your estate.
Planning for a ‘Doomsday’ may feel a remote or upsetting scenario. However, it is important to consider whether to include Doomsday provisions in your will. For example, if your family all travel together or all your beneficiaries are older than you, your estate is at a greater risk of being distributed in a way that does not align with your wishes without a such a clause.
Key considerations
When considering Doomsday provisions, it is important to take legal advice. They should be drafted to work with your family circumstances, the relevant legislation, and any other estate planning documents you have.
There are various ways a person may try to dispute your Doomsday provisions, and we can advise on strategies to reduce that risk. The more we know about your family dynamics and lifestyle, the better we can provide appropriate options.
It is particularly important that you let us know about any contracts, trusts, agreements and other documents which do, or could, affect your estate.
Doomsday provisions and trusts
You should also consider whether a Doomsday provision is appropriate for your family trust.
Without Doomsday provisions, a problem arises if all the trust’s beneficiaries die, or if the trust reaches its vesting date with no beneficiaries left to receive trust property. However, some trust deeds do have default beneficiary provisions to address this situation. We can assist you with reviewing your trust deed to advise you on this.
Adding Doomsday provisions
Adding Doomsday provisions to your will (or trust) increases certainty that your wishes will be followed and your property will be distributed to a person, organisation or cause you have chosen.
You may wish to name your siblings, close friends, iwi, religious organisations or charities as final recipients.
A charitable organisation is often a good option because charities usually remain operating long-term. Further, it provides the opportunity to help a cause that is close to your heart. And, if a charity is reliant on donations and bequests (as are most charities in New Zealand), such a donation may be life-changing for those they help.
¹ Doomsday, originating from Old English, usually refers to the end of the world or a day of ultimate or catastrophic reckoning.
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