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Claims against an Estate

THE NEED FOR DISCLOSURE WHEN THERE ARE CLAIMS AGAINST AN ESTATE

A person is entitled to leave his or her estate to whoever they choose. However, there may be circumstances in which a person has been left out of a Will who believes they should have been included.  This is because “eligible persons” can apply for a family provision claim against an estate. In simple terms, “eligible persons” include spouses, de-facto partners, children (including adult children), and grandchildren or members of the household who were dependent on the deceased. [...]  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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A Will Lawyer’s Advice relating to Capacity to make a Will

A Will Lawyer’s Advice relating to Capacity to make a Will

Can a person without capacity have a will made for them?

If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.

What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?

Consider the following scenario. A person has made a will which leaves all their assets to their spouse. If a few years later this person permanently separates from their spouse and forgets to change their will and some time later they become mentally impaired, they will no longer have the capacity to alter their will. If this person were to die, their previous spouse would receive all their assets. No assets would be given to the person’s children or other important people that the person would have intended to have mentioned in their will if they had the capacity to change it. [...]  READ MORE →

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Binding Death Nominations (I heard it on the radio)

Will LawyerBinding Death Nominations (I heard it on the radio)

Binding Death Nominations need to be completed carefully if they are to be effective.

It is also important to consider who is being nominated as a beneficiary – otherwise there can be unwelcome tax consequences.

A recent superannuation case decided Binding Death Nominations cannot be disclaimed and the parties involved were caught with the unwelcome tax consequences as the nominated beneficiaries were not death benefit dependents and receipt of the benefit was subject to tax.

The Binding Death Nomination in that case was made by the SMSF member on the basis of “comments heard on a radio station.” [...]  READ MORE →

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A Will Lawyer’s answers to SMSF questions

A Will Lawyer’s answer to questions on who should be trustee of your SMSF

Can SMSF members be trustees as individuals – are there problems with having individuals as trustees?

A Will lawyer will advise it is quite okay to have individual members as trustees of self-managed superannuation funds. However, there is a danger that record keeping can become muddled and personal assets can be mixed with those of a fund. There can also be a big administrative burden in transferring title of fund assets from one trustee to another, as opposed to companies having the advantage of perpetual existence.

Trustee companies whose sole role is to be trustee of a super fund also attract a lesser annual ASIC fee, so the cost is not great. [...]  READ MORE →

Judge gavel with Justice lawyers, Businessman in suit or lawyer working on a documents in courtroom. Legal law, advice and justice concept.
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COVID-19 WE ARE HERE TO SUPPORT YOU

Wills and Estate Planning in a Time of Uncertainty

As the COVID-19 crisis plays out before us with each day bringing new reasons for anxiety and uncertainty, we understand that there is concern in the community surrounding the implications of the outbreak. People are worried and we are trying to help.

The imponderable concern people have now is ‘how long will it take for the virus to be brought under control’. The immediate concern people have is for the health and safety of their family and themselves. [...]  READ MORE →

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Literary Executor

Appointment of a Literary Executor

The appointment of an executor within a Will can be assigned to a specific property or a certain type of property. However, the specified executor must fall within the meaning of ‘executor’ under the Probate and Administration Act 1898(the Act), section 41 to be granted probate which states:

“41 The Court may, if it thinks fit, grant probate to one or more of the executors named in any will, reserving leave to the other or others who have not renounced to come in and apply for probate at some future date.” [...]  READ MORE →

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Intestacy rules of the Succession

Order of death can be important where it is relevant to the determination of the destination of the estates of the deceased. This was demonstrated in NSW Trustee and Guardian v State of New South Wales [2015] and demonstrates the need to have a Will Lawyer prepare a Will for you.

In this case a mother and son were found dead in their shared home. Both the mother and son died without a Will, so the destination of the estates and the persons entitled on intestacy would be determined by the sequence of death. The mother was a widow, with one child and there was no evidence that the mother had remarried, entered into a de facto relationship or had an issue after her husband’s death.  The son was unmarried and there was no record that he had ever had any children. [...]  READ MORE →

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Blended Families and Mutual Wills

Blended families (“Brady Bunch families”) create their own challenges in estate planning. In particular, how can both sets of children and both sides of the family be protected?

One method is the use of Mutual Wills. Mutual Wills are based on the Willmakers signing a contract regarding the contents of a Will.

A Will is of its nature revocable and can be changed. The main feature of Mutual Wills is that there is an express or implied contract not to revoke a Will after the death or incapacity of one of the contracting parties. [...]  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 – Extinct Institutions in a Will

Estate Planning – Extinct Institutions and Charitable Purpose

In Hicks v Mater Misericordiae Ltd [2017] QSC 38, the Court had to consider whether a testator’s charitable gift in her will had failed its charitable purpose because of the institution’s closure after her death.

Facts

  • The testator left the residue of her estate to the ‘Medical Superintendent for the time being of the Mater Children’s Hospital in Brisbane for the purchase of medical equipment for the treatment of seriously ill children’
  • However after the testator’s death and before the distribution of her estate, the Mater Children’s Hospital’s public hospital functions were taken over by another children’s hospital

Decision

  • The court then had to consider whether the charitable purpose of this gift had failed because of the closure of the Mater Children’s hospital
  • However, the court established that the evidence allowed the residue of the testator’s estate to be applied as near as possible (cy-pres) to the objects of the defunct institution

If you would like more information or advice in relation to proper drafting of your will or estate planning you should consult a member of our Wills and Estate Planning Team.

Contact Mimi Su on (02) 9635 7966 or mimis@matthewsfolbigg.com.au [...]  READ MORE →