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Estate Planning for Blended Families

Blended families – what are the issues that arise during Estates and how can they be bypassed?

Blended families (“Brady Bunch families”) create special problems and their own challenges in estate planning. Children of past marriages need to be considered and both sets of children need their interests protected, without it impacting on the needs of a current spouse or partner.

Problems that occur from blended family estates include forgetting how assets are held, which therefore automatically pass to a joint owner, potentially creating conflict between the children of the deceased and the beneficiary, failing to distinguish giving “use” of assets to a surviving spouse during their lifetime, as opposed to an outright gift of those assets and creating dissent between the adult children of the previous marriages and the younger children of the current marriage. [...]  READ MORE →

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Testamentary Trust Wills

What are Testamentary Trust Wills?

A testamentary trust will allows you to pass on assets to your beneficiaries by creating a trust, or multiple trusts, in your will. In this type of will, you nominate a trustee to administer the trust for the benefit of the beneficiaries.

There can be significant tax benefits in setting up a testamentary trust particularly for minor or vulnerable beneficiaries. A testamentary trust can also provide asset protection and be effective in protecting beneficiaries from creditors and protecting reckless spenders or intellectually impaired individuals. [...]  READ MORE →

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Financial managers and attorneys – what can happen if they act without authority?

Financial managers and attorneys – what can happen if they act without authority?

Choosing an attorney to manage your financial affairs when it is not possible to do so is a choice that requires great care. The person you choose will be able to access and use your assets as if they are their own.

While the attorney or manager can use your assets, they are still legally your assets. It does not entitle the attorney or manager to use them for their own benefit and they must only be used in your best interests.

This is one of the basic principles in fiduciary duties, a set of responsibilities undertaken by the attorney, mainly to ensure that the principal is looked after, and their best interests are accounted for. This includes being honest, keeping accounts separate and ensuring that there is a detailed record of accounts for the assets that are used, along with the reasons for them. [...]  READ MORE →

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Power of Attorney Revoked or Renounced

When can a power of attorney be revoked or renounced?

Revocation:

In most cases, a person (the principal) who has appointed someone else to act as their attorney may revoke that power at any time if they wish, if they have legal capacity.

 However, an irrevocable power of attorney can only be revoked in very limited circumstances – for example if the attorney consents.

 A principal may wish to revoke a power of attorney for a wide variety of reasons. For example, the attorney’s health may have declined, or the attorney may no longer be suitable to act or there may have been a falling out between the principal and the attorney. [...]  READ MORE →

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Residential Aged Care Agreements

Residential Aged Care Agreements?

A residential aged care agreement is a legal agreement between a resident and the residential aged care provider. It sets out the care and services you will provide to a resident, and how much it will cost them.

The agreement needs to have the resident’s details, the provider’s details, the start date of services provided, the level of care and types of services provided. The provider must also include copies of the policies and practices used to set fees, which fees are payable by the resident and what would occur if fees remained unpaid or paid late, and the interest on such late payments. [...]  READ MORE →

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Will Disputes – Who can be a claimant?

Estate challenges and Family Provision claims – Who can be a claimant?

Those who may be able to make a claim against the estate, i.e. under a family provision claim generally are those for who the will maker were responsible for. The most common categories are as follows:

Spouses

It is recognised that the will maker has a primary responsibility to provide for their spouse and hence any spouse of the will maker, whether they are married or de-facto, is entitled to make a claim against your estate.

Children

Children are eligible to claim against a will maker’s estate, with applicants including biological children and adopted children, whether they are minors or adults. Stepchildren are not included in this category but may fall under ‘anybody else’. [...]  READ MORE →

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Property in an Estate

How is your property held and how does it affect your Estate

Real estate can be the greatest asset that a person can have in their estate, whether it be a singular or multiple properties and it is essential that you are aware of the type of ownership that applies to your own property and make estate planning arrangements to ensure that it is dealt with in an appropriate manner according to your wishes.

How the property interacts with a person’s estate is dependent on how the real estate is held or owned.

There are three types of ownership: sole ownership, joint tenants, or tenants in common. [...]  READ MORE →

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Will Makers – Coercion and Undue Influence

Coercion and Undue Influence: the impact on will makers

When it comes to elderly will makers, the first question is one of capacity, whether they are able to form a proper intention and completely understand the consequences of their wishes.

The secondary question once it is shown that an elder has capacity, is whether they have had any outside influence as to making their decision, and whether they have been coerced into making that decision through threats or reliance on another.

One of the reasons for this being that older people, while still having capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing. [...]  READ MORE →

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Mutual Wills and Mirror Wills

The two Ms – Mutual Wills and Mirror Wills

Making a will is not always as straight forward as it seems. To start, there are four different types of wills, being simple wills, mutual wills, testamentary wills, and statutory wills.

The most common is a simple will, and a couple in deciding on making wills, often they mirror each other’s will.

While mutual wills and mirror wills may sound similar, they in fact have very different effects. In order to lessen this confusion, a breakdown of the differences is below.

Mirror Wills

This type of will is very common between spouses or people in long term relationships. [...]  READ MORE →

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Claim against my estate

Who can make a claim against my estate?

Most estates are completed based on the wishes of the deceased and in accordance with their will.

The starting point of the law is that a person is entitled to leave his or her estate to whoever they choose. A person has freedom to choose their beneficiaries, whether they are family members, other persons or their favourite charity.

Claims against estate can come from under the “family provision” parts of succession law, or from equity law regarding promises of bequests that were never honoured. [...]  READ MORE →

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Contesting Estates

Contesting Estates – when they happen and who has a claim?

If a person dies with a valid will in place, his or her estate is usually distributed according to their wishes. This is the norm, and we emphasise that most estates are largely uncontested or have minor issues based on the understanding of the underlying legal principles which are easily resolved.

There are two main types of claims, firstly where someone feels that they should have been provided for and secondly where the will maker’s mental state is questioned.

Who is eligible to make a provision claim?

Generally, these claims occur when there is a valid will, but someone has been or feels as though they have been left out of the will or not been adequately provided for. While this may seem like a broad category, the person making the claim must fall under the definition of an ‘eligible person’. [...]  READ MORE →

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COVID and your Will

COVID and your Will; what can constitute as a Will?

While you may have seen a lawyer about making a will, until you have signed the document, it is considered an informal will. The circumstances that usually lead to someone considering making a will often entail a scare to the person’s health, or someone close to them. This means that there are not many opportunities to attend the lawyer’s office and complete the execution of the document.

One such case is that of In the Estate of Sugars (Deceased) [2021], where the deceased had given instructions to her lawyer and had requested further amendments to the will prior to executing the document. Due to the need to alter the document, the will was never executed prior to the client’s death. The court took into consideration that the client’s time was impacted due to her health and that they had every intention to execute the will when possible. [...]  READ MORE →