A lack of flexibility when determining where assets will go after their death has many older Greek Australians bemused and alarmed.
Many are shocked to discover that they are not allowed to add conditions to their bequeaths according to Australian law.
It’s a common problem for solicitors who deal with members of the Greek community hoping to devise a will.
“I’ve had situations where clients have expressed the desire to make a bequest but with exhaustive stipulations as to where and how that money will be invested and who is going to benefit,” says Toorak Law solicitor Dean Kalimniou.
“But it is often difficult to explain that bequests cannot be micromanaged to the extent that the will-maker would like.
“A gift is a gift.”
It’s a point of deep stress for many community members who are faced with the prospect their assets won’t be controlled as tightly as they would like.
Property remains one of the biggest forms of anxiety for Greek Australians when devising wills. Greeks traditionally look at property as an asset to be passed down the generations, whereas Australian law focuses on the individual.
Many hope to add conditions such as that the family home will remain unsold so that it is passed on to the grandchildren and the generations after that.
Others hope to make their will benefit some people more than others, which can be overturned if those who feel hard done by contest the will in the courts.
Andrew Pandeli of Andrew Pandeli and Co. solicitors says he has to warn many clients that their wills aren’t concrete if they aren’t fair enough.
“They may want to have the unfettered right to do what they like, but it’s hard to explain to them that the court always has the right to override,” he tells
Neos Kosmos.
Both Mr Pandeli and Mr Kalimniou have dealt with clients who wish to prohibit a spouse or child from receiving assets over petty disagreements.
In one case, a Greek Australian man was hoping to prohibit a son receiving any assets because he married an Australian woman, and hoped to give all the family assets to the son who had married a Greek woman.
In those cases, the court would definitely override the will, Mr Kalimniou and Mr Pandeli say.
“There are reasons, for instance, if a child hasn’t had contact with the family for 20 years, and one child has supported them or they have supported one more than the other,” Mr Pandeli says.
“Then the court would find that [the will] is quite reasonable.”
The courts don’t just look at the fairness of the will, but also look at the need of people contesting the will.
The courts aim to address all issues of the next of kin, whether they be financial or medical to fairly distribute an estate.
Those who choose to not draw up a will face the prospect of their assets being divided by the state at a much higher cost.
Most of the time the assets are divided between the closest relatives, but for anyone without next of kin, all assets are paid to the state government.
Many Greeks innocently feel that by not drawing up a will their children will be able to argue their rights to the court themselves, but the process is a lot harder than that.
“The next of kin has to apply for letters of administration which permit them to distribute the property and if they can prove that they had that close connection, the courts usually grant them,” Mr Kalimniou says.
Mr Pandeli believes it pays to let go of the hope that they will be able to control how their assets get used after their death.
“Too many people want to try and control their assets after their death rather than letting their children deal with them as they may need it,” he says.
“You’ve got to really look after the needs of your children.”