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Will Disputes and Testamentary Capacity

Will Disputes and Testamentary Capacity

The term testamentary capacity is relevant in will disputes as it concerns the question of the Will maker’s intention at the time of conveying their wishes. There is a long standing principle in all aspects of law that without capacity, a person is not capable of understanding the consequences of their actions and therefore is unable to instruct a solicitor.

Through the case of Aleta Gooley v Brett Gooley (2021), the court explains that lawyers when receiving instructions from a client making a will have a role to play in determining whether the will maker or testator has capacity. An experienced solicitor is used to dealing with people making wills and is attuned to the red lights that flash when a person who is of suspect capacity comes across their path, and therefore provides valuable evidence of the Testator’s testamentary capacity. [...]  READ MORE →

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Capacity and Estate Planning

Capacity and Estate Planning

We all have someone or know someone who is now classified as an “elder”. The legal age of being an elder is 65 years. While most at this age or beyond have no issue with living as they always have, some need assistance as the complications of old age settle in.

As with all things in life, each person is different and will present at different times with different cognitive or physical disorders as they age. At such a vulnerable time, it is common to rely on others for advice and support. [...]  READ MORE →

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Elder Financial Abuse – Unconscionable Conduct

Elder Financial Abuse: Unconscionable Conduct

Unconscionable conduct is when a person in a relationship takes advantage of the other person’s disadvantage and uses it for their benefit.

The most common example would be when an elder has a friend or a grandchild who helps support them in an emotional or physical way, to the extent that the elder begins to rely on the person. At this point, the friend or grandchild may begin to suggest things to the elder, such as purchasing a house or giving a gift. [...]  READ MORE →

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Will Disputes

Joint Property and your Will

Most Will Disputes occur from contention over how the Estate was supposed to be divided among the beneficiaries, rather than how the law entitles those to the assets in the Estate.

The primary example being a property purchased in a couple’s names as Joint Tenants. Upon the death of one owner, the law of succession states that the property is automatically passed to the joint owner on title. If the deceased’s Will states that their share of the property is to be passed to their beneficiaries rather than what the law of succession demands, this is how Will Disputes occur. [...]  READ MORE →

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Do you need to update Your Will?

Do you need to update your Will?

Wills can be a reasonably simple to a very complicated document dependent on your needs and intended wishes at the date of your death. While the topic of what occurs after is often sensitive and fraught with emotion, our Estate Planning team is comprised of the professionals required to ensure your Will is updated with consideration to your circumstances and the required attention to detail.

We all know the possibility of getting a home made Will kit is a tempting option as it saves both time and money for you, the client, but the Courts have recognised that in the long run, not having a professionally drafted Will often leads to more Will disputes and therefore a loss of money. [...]  READ MORE →

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Do Millennials have to think of making a Will?

If in doubt, ask a Will lawyer

As a young person, you might think you don’t have sufficient assets to worry about making a Will. Here are some things you might not have considered and should discuss with a Will lawyer:

Inheritance

You may suddenly and unexpectedly inherit money or property from your parents or other family members.

Assets

You may be running your own business and owning business assets, by investing in stock exchange listed shares you may have accumulated a significant share portfolio over the year. It is important to have a Will to state who should receive these assets. [...]  READ MORE →

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Power of Attorneys & their Role in Estate Planning

Power of Attorney refers to the authorisation given to your nominated “attorney” to represent your financial and property decisions. It is important to note that the decisions made by an attorney will be legally binding, to the same effect as decisions made by yourself. It is therefore important to make an informed decision before entrusting this responsibility, and a Will Lawyer can assist to ensure this as part of your estate planning.

The role of a Power of Attorney is only activated once you lose ‘decision-making capacity’ in a legal context, or when you specify you would like it to commence operation. [...]  READ MORE →

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Are my digital assets a part of my estate?

Digital assets form part of your estate and are treated by the court as any other.

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

What Are Digital Assets in Estate Planning?

Digital assets are often overlooked and can lead to loss of personal information and photographs that were unable to be retained through ‘digital inheritance’. To know whether it can be passed down in a Will, it must be transferable. Examples include[1]: [...]  READ MORE →

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Real Estate in Estate Planning

How is Real Estate dealt with in Estate Planning and Estate Administration?

Real estate, or Real Property is land (with or without improvements) owned by one or more persons and is an asset that must be considered when dealing with a deceased estate. There are three types of real estate ownership: sole ownership, joint tenants, or tenants in common.

Each type of ownership has a different impact on how a deceased estate must be handled and requires different estate planning approaches to ensure that your interest in the property is transferred in the manner you wish.

Sole Ownership
Sole ownership over a parcel of property is exactly how it sounds: a single person owns the entirety of a property. If you wish to gift the property to someone in your will, it is important that estate planning measures are taken to ensure that interest in the property is transferred to the preferred. If the transfer of interest is not specified in your Will, your property may be sold by the Executor and the proceeds form part of your estate. This could cause hardship to your relatives and loved ones if they are depending on receiving the property. [...]  READ MORE →

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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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Is my sibling entitled to more inheritance than me?

In some circumstances, there are actions that you might be able to take if you disagree with the distribution of the estate. These are commonly bringing a will dispute or contesting a will through a family provision claim.

An unequal distribution might not have been intended by the testator of the will. A will dispute or challenge can be brought by you, if you have standing. See our previous blog HERE on standing and non-family members disputing a will for more information.

One example of this is Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The deceased, Lady Dorothy Wolseley Macarthur-Onslow, executed a will in 1988 which provided for an equal distribution of her estate between her two children; Lady Hobhouse, the plaintiff, and Mr Macarthur-Onslow, the defendant. In 2002, Lady Macarthur-Onslow was being treated for dementia. In 2004, she executed another will, which was to be the final one before her death in 2013. The effect of the second will was to permit Mr Macarthur-Onslow control to distribute a substantial portion of the property of the deceased, including to himself. The plaintiff initiated a will dispute on the basis of a lack of capacity of her mother to execute the will. [...]  READ MORE →

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Can a non-family member initiate a Will dispute?

Not everyone can initiate a will dispute. A person intending to bring an action for a will dispute must meet the requirement of standing.

A person is considered to have standing where he or she has an interest in the estate of the deceased. A person who may satisfy the requirement of standing might include a person who was entitled to share in the estate under the valid will preceding the disputed will.

However, even where a person may be unable to dispute a will due to their lack of standing, they may be able to contest a will. [...]  READ MORE →