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Claims against an Estate

THE NEED FOR DISCLOSURE WHEN THERE ARE CLAIMS AGAINST AN ESTATE

A person is entitled to leave their estate to whoever they choose. However, there may be circumstances in which a person has been left out of a will and believes they should have been included.  This situation often leads to family provision claims, as “eligible persons” can apply for a family provision claim against an estate. In simple terms, “eligible persons” include spouses, de-facto partners, children (including adult children), grandchildren, and members of the household who were dependent on the deceased. [...]  READ MORE →

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Capacity Issues In Estate Planning

Establishing legal capacity is crucial, especially when contesting a will. It’s not always as straightforward as it sounds. The Supreme Court case of d’Apice v Gutkovich illustrates this complexity. In this case, Irene Abrahams (the deceased) was found to have the capacity to make a will, despite a prior decision by Guardianship Tribunal indicating she could not manage her affairs.

What is Legal Capacity?

Generally, legal capacity requires a person to:

  • understand the facts involved regarding the decision to be made;
  • comprehend the choices available;
  • Evaluate those choices and their likely effects;
  • Communicate the decision clearly.

It’s important to note that legal capacity requirements vary depending on the context. For wills, the foundational principles were established in the 1870 case of Banks v Goodfellow, which has withstood the test of time. [...]  READ MORE →

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A Will Lawyer’s Advice relating to Capacity to make a Will

Can a person without capacity have a will made for them?

If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.

What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?

Consider the following scenario.

A person has made a will which leaves all their assets to their spouse. A few years later this person permanently separates from their spouse but forgets to amend their will. Some time later they become mentally impaired and they will no longer have the capacity to alter their will. [...]  READ MORE →

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Can an unsigned Microsoft word document be accepted by the Court as a Will?

Kemp v Findlay [2024] NSWSC 902, the Supreme Court of New South Wales (Justice Rees) was a will disputes case which considered whether an unsigned Microsoft word document constituted the last will of the deceased.

In July 2023, Andrew Findlay (“the Deceased”) passed away in a boating accident off Sydney Harbour. The Deceased had executed a will in 2015 (“2015 Will”) that left his estate to the mother of his children and the plaintiff, Ms Kemp (“the Plaintiff”). However, in 2019, the Deceased and the Plaintiff’s relationship failed, and the Deceased amended his will in a word document, leaving his estate to his three children (“2019 Will”). The Deceased’s cousin (“the Defendant”) contended the 2015 Will had been revoked and sought a grant of probate of the 2019 Will. However, the Plaintiff disagreed and sought a grant of probate of the 2015 Will. [...]  READ MORE →

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Navigating Family Provision Claims

Ensuring Fairness: Navigating Family Provision Claims

The principle of testamentary freedom suggests that a will maker is not constrained with regards to testamentary wishes and choices. However, chapter 3 of the Succession Act 2006 (NSW) (the Act) enables those who are related to the deceased by blood, close relationship and/or dependence, to initiate legal proceedings, seeking orders for provision or increased provision from the deceased’s estate, for maintenance, education, or advancement in life, which would be different to the deceased’s intended dispositions in their last will. [...]  READ MORE →

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Can a video recorded on a phone constitute a valid last will?

Wills and Estates

In Re estate of Dora Marleny Rodriguez Navarro [2024] ACTSC 211, the Supreme Court of the Australian Capital Territory (Justice Baker) considered whether a video recorded on the deceased’s phone could be considered as a last will.

On 26 December 2023, Dora Marleny Rodriguez Navarro (“the Deceased”) went into hospital in Lima, Peru for cosmetic and abdominal surgery. Due to complications during the surgery, the Deceased passed away on 30 December 2023. The Deceased had not made a formal will, however, prior to her death, she had recorded a video on her phone. In the video she made it “clear” that her money and properties were to go to her husband, except for a “small portion” which was to go to her parents. [...]  READ MORE →

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Superannuation Death Benefit Considerations in the Estate Plan

This Article has been adapted from a presentation that the author made for the Law Society of NSW in their Elder Law, wills and Probate: One day Intensive on 12 March 2024

Introduction

Since the introduction of compulsory superannuation contributions in 1992 the superannuation industry has grown to become a $3.5 trillion industry as at June 2023.  Of that total amount approximately $884 billion are held in self-managed superannuation funds (SMSFs).

For any estate planning lawyer it is crucial to consider as part of the estate plan what will happen to a client’s superannuation death benefit upon their passing. [...]  READ MORE →

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Writing your own Will and Will Disputes

Will Disputes – A Cautionary Tale Against Trying to Write Your Own Will:

Etherton v Mitchelmore [2024] NSWSC 170

Caterina Felice Bohen (‘the Deceased’) died in August 2021. She was survived by two adult daughters and five grandchildren. In a will dated 10 August 2016, the Deceased purported to leave her grandchildren most of her estate. At the end of 2020, the Deceased handwrote a note on the back of a used envelope that read ‘I, Caterina Felice Bohen wish to leave my house to Robin Etherton of Roseville, as he was the only one who ever helped me when I needed help’. She then gave this to Robin Etherton without retaining a copy. The central issue in this case was whether this document could be accepted as one that contained the Deceased’s testamentary intentions. [...]  READ MORE →

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The importance of making a will as a Parent.

You can’t choose your family: sibling rivalry over adult son’s claim for further provision, highlights the importance of making a will as a Parent.

A son’s application for a late inheritance claim was recently turned down by a Queensland court. After more than two decades of rent-free living in one of his father’s residences, the son requested further provision from the estate. This case demonstrates the challenges that may occur when a parent dies without leaving a will and provides important guidance for anyone hoping to seek further provision from the estate without the necessary supporting evidence.

The Case: Day v Peake [2023] QDC 178

Facts:

The applicant, Lloyd Day, is the adult son of the deceased, Desmond Gunston Day, who died intestate (without a will) at 95 years old on July 25, 2020. Desmond was married twice and fathered seven children, six of them survived him.  The eldest child, Rosemary Peake, was granted letters of administration (a court order which allows the administrator to distribute assets and manage the estate) on August 2, 2021. Scott Day, initially applied for further provision from the estate on October 19, 2021, with Lloyd joining the application on March 30, 2022. Scott and Lloyd (the applicants) lived in the two properties namely 51 and 55 Sutherland Street Calliope, that comprised the entire estate, valued at approximately $440,000. [...]  READ MORE →

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Can a Will signed on an iPad be admitted to Probate?

This was the key issue of determination in a recent South Australia Supreme Court decision.

In Re Estate of Elizabeth Seabrooke (‘deceased’) [2023] SASC 122 (‘Seabrooke’), Elizabeth Seabrooke (‘the deceased’) died on 24 April 2022. Prior to her death, she executed a Will on an iPad, signed with an iPad pencil and executed in the presence of two witnesses who did the same. The deceased then scanned the electronic Will and sent it to herself.

The deceased named her daughter Natalie Beresford as executor (“the executor”) of the Will. On application to have the will admitted to probate, the executor sought to admit a printed copy of the scanned electronic will as the last will and testament of the deceased. The original electronic will could not be located on the iPad on which it was prepared and signed, however a copy was saved on a USB which had been lodged to the Registry. The matter was referred from the Registrar to the Supreme Court for determination. There was no argument that the Will did not contain  the necessities required such as a clause revoking all prior wills and codicils as well as a named executor and beneficiaries of the deceased’s property and assets. What was left for the Court to determine was whether a copy of the ‘document’ executed as a last will and testament should be admitted to probate. [...]  READ MORE →

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When there’s a will, there’s a way!

Aveyard v Selwood; Philpott v Selwood; Riley v Selwood [2024] NSWSC 29

Where there’s a will, there’s a way

A recent Supreme Court Decision has demonstrated that when there is a will that does not allow for the “proper maintenance, education or advancement in life” of eligible persons ie family members, the Court will make an order for provision out of the estate of the deceased to do so.

This case involved three applications made for provisions under s 59 of the Succession Act, submitted by late John Raymond Selwood’s (the Deceased) daughters regarding the Deceased’s will dated 23 March 1984.

The Deceased’s will left his estate as follows: [...]  READ MORE →

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The Trouble with the Bank of Mum & Dad

How is the transaction characterised – is it a “loan” or a “gift”?

In Australia even if a parent thinks a transaction is a “loan”, unless there is evidence (ideally by being documented) there is a presumption that the transaction was a gift. Therefore if the parent actually intends the money to be repaid at some point in time it should be documented in a relevant loan agreement or deed.

Documentation of the transaction is essential

Documentation of the arrangement is also important for a number of other reasons which include the following:

  • Sometimes these arrangements may be in place for years or even decades and it is important to clearly set out what the intentions of the parties are so as to minimise the chance of disagreements down the track.
  • Depending upon the terms and the circumstances, a properly documented loan agreement or deed may be able to provide some protection should the debtor become bankrupt or divorced.
  • Documentation can be critical in confirming the arrangements regarding the loan in the event that a parent becomes incapacitated or passes away.
  • A properly documented arrangement can also allow for appropriate security measures being put in place such as a registered mortgage or at the very least a caveat over real property.

Consideration of how these arrangements will impact on your estate planning

If you have provided “loans” or “gifts” to children and these benefits have not been equal between the children during your lifetime you should consider whether your will needs an equalisation clause so that all your children will ultimately end up with substantially the same benefits during your lifetime and as part of your estate. [...]  READ MORE →