Ademption of Wills – What is it?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Let’s take a simple Will, in which I leave my house at1 Smith St,Smithtown, to my daughter, and the balance of my estate (which includes, say, a holiday house, some bank accounts, shares and the like) to my grandchildren.
The gift of my residence is a specific bequest or a ‘specific gift’. It only operates after I die. However if I sell my residence before I die, but don’t change my Will, the general legal rule is that the specific gift fails – the specific asset I intend to leave no longer exists, so my daughter would get nothing. This is what is meant by ‘ademption’. It often doesn’t matter that I may have sold my house at Smith St, to buy another one in Jones St. Read the rest of this entry »
Unsigned Wills – Would you take the chance?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The NSW Supreme Court recently considered whether an unsigned Will of a deceased person should be acted on, as representing his final testamentary wishes.
Under the Succession Act 2006 the Supreme Court has specific power to consider whether an unsigned document (or a document that may be partially signed, but without the degree of formality usually required of a Will) should be admitted to probate and implemented as the last wishes of a deceased person. Read the rest of this entry »
SUPERANNUATION – Binding Death Nomination
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
It is prudent for a member of a Superannuation Fund to file a binding death benefit nomination if at all possible. This ensures that his or her Superannuation benefits are paid in accordance with the wishes of the member after death. Before doing so, a member should check with his or her fund to ensure that there is provision in the rules of the Superannuation Fund for the filing of a nomination. The nomination removes the discretion of the trustees, as the trustee must pay the Superannuation in accordance with the nomination. To be effective, the binding death benefit must: Read the rest of this entry »
SUPERANNUATION – Who Gets It?
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
A person’s Superannuation is often substantial and sometimes even a person’s largest asset. However, many people are under the misunderstanding that when they die, their Superannuation will pass under the terms of their Will. This is not correct.
Each Superannuation Fund has a trustee and the trustee of the Fund determines who receives the Superannuation after the owner of the Superannuation dies. The trustee is bound to take into consideration, the terms of the Superannuation Trust Deed and the relevant legislation. However, the trustee is not bound to take notice of the deceased’s Will. You may well ask the question “How do I ensure my Superannuation goes to the person (or persons) of my choosing?”. Read the rest of this entry »
SUPERANNUATION – Who Should Benefit On Death?
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
If a member of a Superannuation Fund chooses to file a binding death benefit nomination then the member can only nominate one or more dependents (as defined in the legislation) or the member’s legal personal representative. A dependent includes a spouse of the member, any child of the member and any person with whom the member has an interdependency relationship. An interdependency relationship between 2 persons exists if: Read the rest of this entry »
Bequests of Real Estate in Wills
By Sally Davies
Sally Davies is a Solicitor at Mullane & Lindsay in Newcastle and specialises in our Commercial, Property & Estates Law Team
Care should be exercised when including a specific gift of real estate in a Will, with particular attention paid to what should happen to the bequest in the event that the property is sold and the proceeds of sale used to fund alternative accommodation. Read the rest of this entry »
Making a Power of Attorney – Part 2
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
The Powers of Attorney Act provides that an Attorney is not entitled to benefit himself or herself unless the Principal (the person appointing the attorney) specifically empowers the Attorney to do so in the Power of Attorney. It is commonplace for a spouse to appoint his or her spouse as Attorney. Often a substitute Attorney is not appointed in the event that the spouse dies or is unable to act as the Attorney. Section 12 (2) of the Powers of Attorney Act allows a clause to be added to the Power of Attorney whereby the Principal authorises the Attorney to confer benefits on the Attorney to meet his or her reasonable living and medical expenses.
Making a Power of Attorney – Part 1
By Robert Lindsay
Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.
A Power of Attorney is a document which enables a person (the Principal) to appoint another person to be his or her Attorney. Subject to the terms of the Power of Attorney, the Attorney is free to make business decisions for the Principal. The Power of Attorney can become effective immediately or at some future time. When the Power of Attorney becomes effective it does not mean that the Principal loses the ability to make his own business decisions. It simply means that there is a second person who can also make business decisions for the Principal. The Powers of Attorney Act 2003 sets down the rules relating to Powers of Attorney.
If a Principal appoints two or more Attorneys then they can be appointed either jointly, or jointly and severally. If the Attorneys are appointed jointly then all decisions by them must be joint. If they are appointed jointly and severally then the Attorneys can make independent decisions. Read the rest of this entry »
Law Reform: Less Australia/New Zealand legal divide
Published by Law Society of New South Wales
The Australian and New Zealand governments have signed an agreement to make it easier to enforce certain judgments and sanctions between the two countries. It is also intended to streamline the process for resolving civil proceedings that cross the Tasman.
The direct result of this reform will be that parties in Australia or New Zealand with decisions not involving money that are captured by the trans-Tasman law reform will have more options for enforcement and a higher likelihood of success in enforcing when the defendant is in the other country or has property there.
The majority of civil proceedings will be able to be served in the other country without separately seeking permission from a local court, excluding such civil proceedings as dissolution of marriage, enforcement of maintenance obligations and enforcement of child support.
Contesting Wills – The Time has Changed
Laws changes relating to contesting Wills.
Chapter 3 of the Succession Act came into effect on 1 March 2009 and replaces the Family Provisions Act. It has introduced changes in respect of Court proceedings involving a contesting Wills. Previously an eligible person, being a person who could contest the Will of a deceased person had a period of 18 months from the date of death in which to commence proceedings seeking orders for provision out of the Will of the deceased. However, in respect of the estates of persons dying on or after 1 March 2009, a claim by an eligible person must be made within 12 months of the date of death.
Who can contest a Will?
Section 57 of the Succession Act details the category of persons who can contest a Will and has added a category being “a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death”.
For example, an unpaid live-in carer may now be a person eligible to make a claim in the estate of a deceased person if adequate provision has not been made for the carer, in the Will. Of course, the fact a person is an “eligible person”: under the legislation does not mean they will automatically succeed in proceedings to contest the Will.