featured-image-posts-800w
No Comments

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 →

featured-image-posts-800w
No Comments

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 →

featured-image-posts-800w
No Comments

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 →

featured-image-posts-800w
No Comments

“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 →

featured-image-posts-800w
No Comments

WHY GET A WILL LAWYER TO PREPARE YOUR WILL?

Wills – not exactly the best BBQ conversation material.  If you are like most people, you only tend to think of wills in the dead of night, worrying about what will happen to your loved ones if you die.  Or if you happen to see one of those TV commercials late at night promoting the benefit of the ‘do it yourself’ simple will kit.  At first glance that might seem like the perfect solution – quick and cheap.

So why on earth would I pay more to get my will drafted at a law firm?

A ‘simple’ will may be all that you require.  However, a will that best addresses your own unique circumstances may not come in a ‘one size fits all’ package.  For example, if [...]  READ MORE →

No Comments

De Facto Partners and Intestacy

De Facto Partners and Intestacy: Understanding De Facto Partner Entitlements

When someone passes away without leaving a Will they are considered to have died intestate.  In such situations the distribution of the deceased person’s estate is determined by statutory rules.  The Succession Act of 2006 (NSW) (the Succession Act) outlines the statutory rules for distribution of an intestate estate.

In determining who is considered as the next of kin entitled to the intestate estate, the Succession Act gives a broad definition to the term ‘spouse’. According to section 105 of the Succession Act, a ‘spouse’ includes someone legally married to the person who has died intestate or was in a domestic partnership with the person who has died intestate, immediately before their death. A domestic partnership also includes a registered relationship or a de facto relationship that has existed continuously for a minimum of two years or has resulted in the birth of a child. [...]  READ MORE →

No Comments

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 →

No Comments

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 →

No Comments

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 →

No Comments

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 →

No Comments

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 →

No Comments

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 →