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Superannuation Death Benefit Considerations in the Estate Plan

This Article has been adapted from a presentation that the author made for the Law Society of NSW in their Elder Law, wills and Probate: One day Intensive on 12 March 2024

Introduction

Since the introduction of compulsory superannuation contributions in 1992 the superannuation industry has grown to become a $3.5 trillion industry as at June 2023.  Of that total amount approximately $884 billion are held in self-managed superannuation funds (SMSFs).

For any estate planning lawyer it is crucial to consider as part of the estate plan what will happen to a client’s superannuation death benefit upon their passing. [...]  READ MORE →

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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 →

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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 →

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Can a Will signed on an iPad be admitted to Probate?

This was the key issue of determination in a recent South Australia Supreme Court decision.

In Re Estate of Elizabeth Seabrooke (‘deceased’) [2023] SASC 122 (‘Seabrooke’), Elizabeth Seabrooke (‘the deceased’) died on 24 April 2022. Prior to her death, she executed a Will on an iPad, signed with an iPad pencil and executed in the presence of two witnesses who did the same. The deceased then scanned the electronic Will and sent it to herself.

The deceased named her daughter Natalie Beresford as executor (“the executor”) of the Will. On application to have the will admitted to probate, the executor sought to admit a printed copy of the scanned electronic will as the last will and testament of the deceased. The original electronic will could not be located on the iPad on which it was prepared and signed, however a copy was saved on a USB which had been lodged to the Registry. The matter was referred from the Registrar to the Supreme Court for determination. There was no argument that the Will did not contain  the necessities required such as a clause revoking all prior wills and codicils as well as a named executor and beneficiaries of the deceased’s property and assets. What was left for the Court to determine was whether a copy of the ‘document’ executed as a last will and testament should be admitted to probate. [...]  READ MORE →

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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 →

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NCAT affirms Disciplinary Decision to Disqualify Certifier from Registration for 10 years.

Case Review: Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4

The NSW Civil and Administrative Tribunal (NCAT) has recently affirmed a decision of the Commissioner for Fair Trading (Commissioner) to cancel a certifier’s registration and disqualify him from registration for 10 years. Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4 (Orfali Case) is a case that exemplifies the necessity for certifiers to ensure they comply with conditions of their certificates of registration.

Background

The Applicant, Mr Orfali, applied for an NCAT review of the Commissioner’s decision to cancel his registration as a registered certifier and disqualify him from registration for a period of 10 years. [...]  READ MORE →

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Effective options to recover debts in NSW

Effective options to recover debts in NSW – What can I do to maximise success

By Ewurama Appiah a Law Clerk at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

With changing economic landscapes in New South Wales, the need to recover debts can often pose challenges for creditors. However, there are a range of actions that you can take to maximise your process to recover debts. Here are some steps that you can take to ensure your debt recovery process has the best chance of success: [...]  READ MORE →

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“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 →

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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 →

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Significant Changes to NSW Duty and Land Tax in 2024

Key changes to NSW Duty and Land Tax take effect as of 1 February 2024, from the Treasury and Revenue Legislation Amendment Bill which assented on 27 September 2023.The reform introduces substantial amendments aligned with the NSW Government’s 2023-24 Budget. Key changes are set to impact land tax, corporate reconstruction, consolidation transactions and landholder duty, demanding attention and strategic planning from affected individuals, businesses and investors.

Summary of some of the key reforms include: [...]  READ MORE →

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When is Trade Mark Infringing

There are many circumstances where the use of a logo, image, word, phrase or other form of mark may be infringing on a registered trade mark. However, it can sometimes be difficult to comprehend or identify when infringement occurs where it is not clear if the alleged infringing mark is actually being used as a trade mark.

Pursuant to s 120 of the Trade Marks Act 1995 (Cth) (“the Act”), a person can only infringe a registered trade mark. Therefore, if a person uses a trade mark but has never taken steps to register the trade mark with IP Australia (and obtain registration), they do not receive the protection and exclusive right provided by the Act to make a claim and/or prosecute infringement of their trade mark. [...]  READ MORE →

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Legal Costs Associated with Will Disputes

Legal Costs Associated with Will Disputes

Will disputes occur when there is a disagreement or a perceived slight concerning the deceased and the wishes they had left in their will. Whether it be a son, cousin or distant relative, anyone who was a dependent on the deceased may make a claim against the estate.
The executor in the matter must defend these claims as they hold a duty to ensure that the testator’s last wishes are fulfilled per the will that they had left. The legal costs that are accrued by the executor in defending such claims or by the claimant in bringing these claims to court are often big amounts and paid out of the estate.
To preserve the estate, ensuring that the deceased’s hard-earned money and assets are distributed according to their wishes, the best way is to begin with a clear and well defined will. This reduces the chance of will disputes occurring in the first instance. By ensuring that your wishes are well defined with no ambiguity, there is less possibility of a potential claimant declaring that they have not been considered or provided for.
A professionally made will also removes the potential of claims as to the validity of the will being raised. This brings into dispute whether the executors have the right to deal with the estate’s assets or money. If such a dispute arises, the conflicting parties are required to fund their cases on their own.
In these types of conflicts, the named executors are not entitled to use the estate money to defend such claims of validity of the will, which in turn questions the validity of their appointment as executors. The case of Gooley v Gooley (2020) states that the named executors have no authority to pay their legal costs of the proceedings from estate funds until such an order is made by the court.
Our will lawyers are specialists in drafting and creating estate planning documents, considering factors that may bring capacity into question and experienced in will disputes, which enable us to provide you with advice in relation to any potential claim against your estate and options to avoid such potential claims. [...]  READ MORE →