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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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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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“Drafting a Will is simple, and cheap…isn’t it?”

When it comes to drafting a will, working out who is going to get what out from your estate is the hard bit.  After you’ve figured that out, the actual drafting of the will is just a straightforward process, and anyone can do it – no need to get a wills lawyer involved.  That’s right, isn’t it?

Well, yes and no.

Most well-written wills follow a simple structure and avoid the use of legal jargon as much as possible.  When it comes to reading a will that was not drafted by a will lawyer and interpreting what it means, a common sense approach is encouraged.  If such a will contains a few technical glitches or inconsistencies, that should not matter provided the intention of the deceased is clear enough. [...]  READ MORE →

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Contesting a Will

Contesting a Will

Contesting a will occurs where a person claims they have not received adequate provision under the deceased’s will. The law permits a Will to be altered after the consideration of several factors.
It begins with the drafting of a will. The will maker attempts to balance the competing interest of beneficiaries that they believe should benefit. Our Estate Planning Solicitors will be able to advise as to the moral obligation that may be owed to the various parties in your life. If one of these parties feels as though they deserve more or are entitled to more, they would likely exercise their right under the Family Provisions Act and contest the will to seek adequate provision. [...]  READ MORE →

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WILL DISPUTES IN NSW

WILL DISPUTES IN NSW – FAMILY PROVISION CLAIMS

 When a family member passes and you have been left out of the will or if you think that you have not been adequately provided for in the will, you could consider disputing the will by making a family provision claim. Making a family provision claim would enable an eligible family member to receive a greater share of the deceased’s estate. We are observing an increasing rise of will disputes and contested estates.  

Who is Eligible to make a Family Provision claim?

In New South Wales, section 57 of the Succession Act 2006 allows certain people to make a family provision claim, for provision from a deceased person’s estate. The categories of “eligible persons’’ include: [...]  READ MORE →

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Probate Caveats (NSW)

PROBATE CAVEATS (NSW)

If you think the will of a loved one being probated is invalid or there is another will that supersedes the will being probated, then you should consider placing a caveat over the application for a grant.

You could protect your interest in the deceased’s estate, by lodging a caveat to stay the proceedings seeking Probate or Letters of Administration or resealing, until such disputes are resolved.

Grounds for lodging a Probate Caveat

A Probate Caveat could be lodged if you intend to challenge the validity of a will, where there are concerns of the will being forged, the will-maker not having testamentary capacity to make the will or the will being executed under duress. [...]  READ MORE →

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Intestacy – the rules of Succession

Intestacy – the rules of Succession

Intestacy: refers to a situation where somebody has died without leaving a valid will. If you die without a will, a statutory formula is used to determine how your assets are distributed. Consider the following scenario:

Karen died without a will and left her de-facto partner Paul. Karen also left a child Chloe from her previous marriage with Mark (now divorced). According to the statutory formula:

  1. Paul will be entitled to Karen’s personal effects, statutory legacy ($490,000 approximately and CPI adjusted) and one-half of the remainder (if any) of Karen’s estate.
  2. Chloe will be entitled to the remaining one-half of Karen’s estate after Paul’s entitlement has been taken out; and
  3. Mark will not be entitled to receive any of Karen’s estate.

This scenario involving Karen’s estate may not have been at all how Karen would have wanted her estate to be distributed. If only Karen had a valid will at the date of her death! [...]  READ MORE →

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Superannuation, SMSFs and Trustees – How do they interact with your Estate

Superannuation, SMSFs and Trustees – How do they interact with your Estate?

Your superannuation is not usually covered by your Will. The reason for this is that your super is held in trust for you by the Trustee of your super fund. You can make a binding nomination. A valid binding nomination creates a legally binding instruction on the Trustee of your super fund to distribute your super to the beneficiary or beneficiaries that you nominate.

Your binding nomination often needs to be reissued every three years, which also serves as a good reminder to update your Will and to check that your estate plan continues to be structured in an effective way.  [...]  READ MORE →

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Choosing the Right Executor

Choosing the right Executor and being an Executor

Choosing

Choosing an executor is one of the most significant aspects of effective estate planning. An executor is responsible for managing the administration of your estate and the distribution of your assets in accordance with your will. Often the wrong choice of executor in hindsight can lead to or exacerbate will disputes later on.

The obligations of an executor and the factors that need to be considered in choosing an executor will vary based on the wishes of the will maker.

Firstly, one must consider the number of executors they wish to appoint. If choosing multiple executors, keep in mind that if there are any disputes between your executors, it will likely have a detrimental effect on the administration of your estate, by costing the estate time and money. [...]  READ MORE →

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Digital Assets in Your Will

Digital Assets – what happens to them?

We live in an era where our digital footprint has come to reflect more of our identity than werealise. As technology continues to advance, it is important to account for digital assets in theprocess of estate planning.

 Digital assets are often overlooked and can lead to loss of personal information andphotographs that were unable to be retained through ‘digital inheritance’. To know whether itcan be passed down in a will, it must be transferable.

Examples include:

  • Bitcoin and other forms of cryptocurrency
  • Non-fungible tokens (NFTs)
  • Domain names
  • Online account funds, e.g., PayPal
  • Money from an online shopping service, e.g., Amazon, Esty
  • Digital music files or pictures
  • Frequent flyer miles from your airline
  • Blog content or other online published works
  • Monetized video channels earning advertising revenue.
  • Online investment portfolios

Social media handles and email accounts are characterised as ‘non-transferable’ assets whichare not under individual ownership, and only temporarily licenced for personal use. Thesetherefore cannot be ‘inherited’ under a will but can be accessed if instructed to beneficiariesin an Estate Plan. [...]  READ MORE →