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Can I include my superannuation in my Will?

Your superannuation can be one of your largest assets and accordingly it is important that your estate plan reflects your wishes on how you want this to be distributed after your death. Unlike your other assets, 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.

This means that you should consider the different options available to you to ensure your superannuation is distributed in accordance with your wishes. It is always advisable to seek advice from an estate planning lawyer on which option will be best suited to your needs. [...]  READ MORE →

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I don’t have a Will: what are the consequences?

Without creating a Will or contacting an Estate Planning Lawyer to assist in creating a Will, your estate may be inherited by people you may not wish to benefit from your death. According to the Succession Act (2006) The hierarchy for relatives receiving the estate is as follows:

  • Spouse
  • Children of the deceased
  • Parents
  • Brothers and Sisters
  • Grandparents
  • Aunts and Uncles
  • First Cousins

This list is exhaustive and the estate will be provided and divided to the next available relative category. For example, if you don’t have a spouse or children, your estate will be divided amongst your parents, and if no surviving parents, your brothers and sisters equally, and so on. [...]  READ MORE →

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De Facto Partner Dies with No Will

What happens when a de facto partner dies with no will?

A person is in a de facto relationship with another person if they have a relationship as a couple living together, and  they are not married to one another or related by family. Our will lawyers can assist you to determine if you, or someone you know, are or were de facto partners. We can also assist you to create or update a will to express your wishes relating to the distribution of your assets.  If your de facto partner has died without a will, you should consult our estate planning lawyers to find out about your entitlements. [...]  READ MORE →

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DOES MARRIAGE AFFECT YOUR WILL?

DOES MARRIAGE INCLUDING SAME-SEX MARRIAGE AFFECT YOUR WILL?

Marriage can result in a Will or parts of it being automatically revoked.

If a person marries after making a Will, it  will be revoked with exceptions including:

·       gifts in the Will from a person to a spouse who they marry are not revoked;
·       an appointment as executor or whom the testator is married to at the time of his or her death is not revoked.

Same-sex marriage in Australia has been allowed since 9 December 2017. The same laws apply in relation to Wills of same-sex couples. A same-sex marriage may make a past Will invalid subject to the exceptions mentioned above. [...]  READ MORE →

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Executors of Estates

Traps and liability issues for Executors of Estates

You are appointed as Executor of an Estate. You appreciate the confidence expressed in you, and you are more than happy to help your relative or friend.

It can’t be that hard, can it?

What is often not appreciated is the responsibility that comes with being the Executor of an estate and that an Executor can be personally liable if the legal requirements are not performed properly.

The basic requirements are:

Executor’s role. An Executor is required to uphold the deceased’s Will and put into effect the deceased’s wishes as expressed in the will. This usually requires the Executor to obtain a Grant of Probate from the Supreme Court. The Grant proves to the rest of the world the Executors power to deal with the deceased’s assets
An Executor has a strict duty to properly and effectively administer the deceased’s Estate. An Executor can be personally liable for a breach of that duty. Executors must act impartially and prudently. [...]  READ MORE →

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Will Lawyer for non-English speaking clients

How a Will Lawyer can assist non-English speaking clients

A recent report prepared by Charles Sturt University and the University of Adelaide found that “… roughly half of adult Australians have a Will but nearly half of those who do don’t feel that their Will is up-to-date or adequately expresses their wishes.” A Will Lawyer can assist.

This is surprising, considering that a Will is probably one of the most important documents that a person will ever sign.  It also highlights the importance of talking to a Will Lawyer.

A Will is defined as a legal document, and a statement of a person’s wishes that are to be carried out when they pass away.  The benefit of having a Will is that you get to decide how the assets that you have gained over a lifetime may be distributed.  When preparing a Will, it is important that you speak to a Will Lawyer to ensure that your will meets all legal requirements and that your wishes are clearly expressed so as to reduce the chance of there being an argument over what your intentions were (who receives what).   [...]  READ MORE →

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How a Will Lawyer can Assist Non-English Speaking Clients

A recent report prepared by Charles Sturt University and the University of Adelaide found that “…roughly half of adult Australians have a Will but nearly half of those who do don’t feel that their Will is up-to-date or adequately expresses their wishes.”[1]

This is surprising, considering that a Will is probably one of the most important documents that a person will ever sign.  It also highlights the importance of talking to a Will Lawyer.

A Will is defined as a legal document, and a statement of a person’s wishes that are to be executed when they pass away.  The benefit of having a Will is that you get to decide how the assets that you have gained over a lifetime may be distributed.  When preparing a Will, it is important that you speak to a Will Lawyer to ensure that it meets all legal requirements and that your wishes are clearly expressed so as to reduce the chance of there being an argument over what your intentions were (who receives what). [...]  READ MORE →

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Estate Planning and Superannuation

ESTATE PLANNING and SUPERANNUATION – The importance of considering Superannuation as part of your overall Estate Planning

Estate Planning Decision: In D17-18/120 (2018) SCTA 24 the Superannuation Complaints Tribunal (“Tribunal”) had to consider an application by the Deceased three minor children for payment of the death benefit and whether the binding death benefit could be overruled.

Facts

  • The Deceased had two adult children with his first wife and three minor children with his second wife.
  • After being diagnosed with a terminal illness the Deceased signed a new Will and at the direction of his solicitor, a Binding Death Benefit Nomination (“BDBN”) ( six months prior to his death.)
  • Both the Will and BNBN were in favour of his two adult children in equal parts.
  • The evidence supplied was that the Deceased had not been in contact with his second wife for many years; however had a strong and close relationship with his adult children.
  • The second wife sought that the death benefit be split equally among all children.  This application was rejected by the Trustee.
  • The second wife/minor children brought an application to the Tribunal.  It was asserted that the BDBN was not valid as adult children were not considered dependants.   It was also asserted that the BDBN was invalid as a result of duress, coercion and undue influence.

Decision

  • The Tribunal had to consider whether the Superannuation Decision to pay the death benefit as per the BSBN was fair and reasonable.

Validity of the adult children as “dependents”

  • The Tribunal held that for the BDBN to be valid the nomination must be in favour of the legal personal representative or a ‘dependant’ of the Deceased.
  • Further, the Tribunal found that, under section 10A of the Superannuation Industry (Supervision) Act 1993 a ‘dependant’ of a child includes a child of the deceased member, whether or not that child is less than 18 years of age.  Therefore, the Tribunal held that the adult children were both considered dependents and consequently thebinding decision was valid.

Influence/coercion

  • The Tribunal placed great emphasis on the evidence supplied by the Deceased Member’s mother and the solicitor who took instructions and gave a statement regarding the Deceased capacity.
  • The Tribunal noted the solicitor’s statement… “The deceased had clear instructions and had full capacity at the time he attended the (solicitor’s offices)

The above determination highlights the importance of getting your Will properly drafted and the need to consider superannuation.  If the Deceased had not obtained legal advice and updated his Will and his BDBN, the outcome of this contested Death Benefit Payment may have been very different. [...]  READ MORE →