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Guardianship of Minors and Your Will

Guardianship of Minors and your will – what do you need to do?

If you are a parent of a child or children who are under 18 years old, you should consider appointing a guardian who can look after your children in the unfortunate event of your death.

 This allows you to specify who you want to care for the welfare of your children. Our estateplanning lawyers can assist in drafting a new will or updating your existing will to appoint aguardian for your children.

 A guardian will be legally responsible for looking after the day to day needs of your children as well as making decisions about their long-term welfare and upbringing. [...]  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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Notional Estate – what does it mean

Notional Estate – what does it mean?

Introduction

Will disputes, matters relating to distribution of a deceased estate, contested wills and the rights of beneficiaries are issues that an experienced will lawyer understands.

 For various reasons, a will maker may form an opinion that they are not morally obligated, or duty bound to make provision for certain persons in their will. For example, where a will maker has been estranged from their child for several years, they may not feel duty bound tomake any provision for this child.

 In the context of blended families, will makers often are faced with hard decisions about who they would like to benefit more from their estate given the competing financial needs of adult children from their previous relationship and their current spouse. Having made those hard decisions, asking an experienced wills lawyer to prepare the will or will update will lessen the risk of a successful will dispute. [...]  READ MORE →

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Estate Planning and Will Disputes

Why Make Estate Planning Documents in the First Place?

Given the rise of instances of financial elder abuse, contested wills due to capacity issues of the testator, undue influence and family provision claims, is it even worth having these legal documents in place, when the potential for misuse or other legal procedures are available?

The answer is yes! Although such instances exist, the alternative is decidedly more complicated and often a longer and more expensive process.

When considering estate planning documents such as enduring power of attorney and enduring guardian documents, it is essential that the person you wish to care for you or look after your affairs has the power to do so. While the potential for abuse of this power is present, without these documents, should you become incapacitated, nobody may be able to pay your bills or sell your property should you require the funds to move into a suitable aged care facility. [...]  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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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 →