Making a Will – beware the assets test

Posted on July 16th, 2018

Making a Will - beware the assets testA couple who receive the aged pension and own their own home can have combined assets of up to $380,500.00 without their pensions being affected. If they have combined assets greater than that amount their pension may be reduced. A single person receiving the aged pension (and owning his or her own home) must have assets of less than $253,750.00 otherwise the pension can be affected.

As at 20 March 2018, the maximum basic rate of the aged pension for a couple was $1245.60 per fortnight (combined). For a single person the maximum basic rate of aged pension was $826.20 per fortnight. When a couple receiving the aged pension are considering their Wills it is wise for them to calculate what assets will be held by the survivor when the first of them dies. If the couple has combined assets in excess of $253,750.00 (disregarding their home) then the surviving spouse’s pension may be reduced depending upon the assets which pass to him or her. The survivor will receive the pension for a single person and the single person pension will be further reduced based upon how much he or she has above $253,750.00 (excluding the home). Read the rest of this entry »

If the husband was the puppet master, who was the puppet?

Posted on July 3rd, 2018

If the husband was the puppet master, who was the puppet?In a recent Family Law Full Court case, it was not in dispute that the husband exercised control over his 99 year old father’s unit trust (UT) including directing agents on behalf of the UT, using the UT’s assets as security for his own personal borrowings; intermingling his funds with the funds of UT and, since 2002, treating the UT as if it was his own.   It was the expectation of his estranged wife therefore that the assets of the UT should be included in the assets to be adjusted between the parties on settlement because the father’s UT was simply a puppet for the husband.

The Full Court and the trial Judge however disagreed and found, that whilst the father remained the owner of the UT, he was not a puppet of his son.  The husband had some “lawful right to benefit from the assets of the trust” and controlled some of the dealings of the UT, but they were not satisfied that the UT was a device used by him for his sole benefit. Read the rest of this entry »

Feuding over the funeral – who has the say?

Posted on January 8th, 2018

They say death brings out the worst in people. It follows that the funeral arrangements are probably the first opportunity where disputes can erupt.

So who has the final say when it comes to your funeral arrangements?

If you die with a will, the answer is your executor. The executor appointed under your will has the right to the custody and possession of your body for the purpose of burial and is responsible for the burial. These rules date back to 1882. If you have included wishes regarding your funeral in your will, they are not binding on your executor. If however you have left a written direction that you are not to be cremated, this is binding on your executor.  Read the rest of this entry »

If I leave him something, can he still contest my will?

Posted on January 8th, 2018

The changing nature of families over recent years has presented a new concern for people in attempting to leave their estate to those they wish. With an ever increasing number of blended families and more and more competing interests of family members who may not have a close relationship with each other, people are finding it difficult to have their testamentary intentions become a reality.

A family provision claim is where someone claims they should have been left more of a deceased person’s estate than what they were left. There are only certain classes of people who are eligible to make a family provision claim, however the law has evolved over time to broaden the types of eligible persons.  Read the rest of this entry »

Thinking of amending your will by hand? Think again

Posted on January 8th, 2018

Your will is an extremely important document and governs what happens to your assets upon your death. Estate planning, and particularly drafting and interpreting wills, is a complex area of law. Although this is so, people commonly think it is straight forward.

You have spent a lifetime accumulating your wealth and the transferring of that wealth to the next generation is not necessarily a simple task. Even in situations where there is a simple family structure and relatively straight forward assets, we often see problems created by self-drafted or self-amended wills.

Obtaining legal advice regarding how best to transfer your assets upon your death and having your will professionally drafted is of great importance. For those who have gone to the effort and expense of doing so in the past, it can be tempting to make small changes to the will by hand afterward. There are however numerous rules which govern whether a will is validly amended and it is often the case that these rules are not followed when people amend their wills themselves.   Read the rest of this entry »

Before the wedding bells ring: some considerations for same sex couples in light of the marriage act reforms

Posted on December 14th, 2017

Following the recent monumental legislative change – legalising same sex marriage – some couples have gone from a de facto couple to a married couple overnight as their marriage in overseas jurisdiction has become recognised in Australia.  Further, there is an expectation of a flurry of filing of Notices of Intention to Marry in the coming months, as same sex couples are finally able to legally marry in Australia.

However, as many same sex couples have been in a committed relationship for many years; they have set up their affairs and finances in a specific manner, which may now need to be reviewed and re-considered in light of their changed – or impending change of – marital status.

So, before the cake is ordered, the celebrant booked, and the wedding bells ring, consider:  Read the rest of this entry »

When there is a way, there is a Will

Posted on July 27th, 2017

The Supreme Court has power to order a Will to be made (“statutory wills”).  It is not a power used lightly but can be extremely useful.

In A Ltd v J (No 2) [2017] NSWSC 896 a 14 year old child had sustained injury and received $8 million in compensation.  She suffered from life threatening symptoms and there was a fear she might die at any time.  She clearly lacked capacity to write a Will. The child’s mother made application for a Will to be made for her.  The Will suggested by the mother gave much more of the estate to the mother than the child’s father. Read the rest of this entry »

Taking steps to keep the family together

Posted on July 27th, 2017

After the death of a loved one, family members often quarrel over a deceased’s possessions.  Jewellery is frequently fought over.  Unfortunately, the legal costs of taking such disputes to Court are prohibitive which means that whoever has the jewellery is likely to keep it.

In Tina Marie Carter v Elizabeth Margaret Law [2017] NSWSC 919 a Judge hearing a dispute over jewellery acknowledged this saying: “It is most unfortunate that a dispute involving the sum of $30,000 could not be resolved without incurring costs”.  The Judge’s view was that the costs were likely to equal the amount in dispute.  In that case, a mother died leaving her estate to her children in unequal shares.  She appointed two of her children executors of her estate. Read the rest of this entry »

Five stages of letters of administration

Posted on July 14th, 2017

A grant of letters of administration is a formal order from the Supreme Court which provides authority to the administrator(s) to carry out administration of a deceased estate in accordance with the rules of intestacy. The person appointed as administrator is usually one or more of the primary beneficiaries of the estate. Generally speaking, an application for letters of administration is dealt with by paperwork only and does not require court appearances, however it is not necessarily a simple process.

Usually, an application for letters of administration and the associated administration of an estate involves five steps. These are as follows:-  Read the rest of this entry »

The five stages of probate

Posted on July 14th, 2017

A grant of probate is a formal order from the Supreme Court which provides authority to the executor(s) appointed under a Will to carry out the administration of a deceased estate. Generally speaking, an application for probate is dealt with by paperwork only and does not require court appearances, however it is not necessarily a simple process.

Usually, an application for probate and the associated administration of an estate involves five steps. These are as follows:-

Step One

Making initial enquiries in relation to the assets and liabilities of the estate and publishing a notice of intended application for probate. Read the rest of this entry »

What is estate planning and why should I care?

Posted on July 13th, 2017

Estate planning refers to the planning and arranging, during your lifetime, for the management and disposal of your estate (i.e. assets) while you are living and after your death. It is a complex area of law and, without proper consideration, there can be significant consequences for both you and your family.

Read the rest of this entry »

Remaining eligible to claim when a relationship ends

Posted on July 4th, 2017

Relationships can be tricky.  Sometimes a relationship can apparently come to an end but the parties keep seeing each other and remain close.   In a recent case of Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe [2017] NSWSC 818 a male died leaving no Will.  His only family was his siblings who were due to inherit under intestacy law.   He had complained to friends that his former partner would not get “out of my life“.    Read the rest of this entry »

Using preliminary discovery for family provision claims

Posted on June 28th, 2017

Disputes between siblings after the death of a parent are common.  A typical basis for a dispute is an allegation that one child has helped themselves to their parent’s money in the parent’s lifetime.

On the death of a parent, accessing documentation to take the other sibling to task is difficult.   Often the sibling has no legal authority to ask for information .  In Viljoen v Hayes [2017] NSWSC 801 a sister requested copies of bank statements belonging to her deceased father for the purpose of finding out what had happened to the proceeds of sale of her father’s property in his lifetime.  The brother declined to produce copies.  Read the rest of this entry »

Can I have a copy of the Will?

Posted on June 28th, 2017

When a person makes a Will he or she is not obliged to show the Will to anyone. Some people do, some people don’t. However, after the Will maker has died, certain people are entitled to a copy of the Will as provided for in Section 54 of the Succession Act 2006. Those people who are entitled to a copy are:- 

 

 

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Legal reform – elder abuse – engaging with aging

Posted on June 19th, 2017

The ARLC Commission has launched its report into Elder Abuse and its key recommendations can be found at http://www.alrc.gov.au/news-media/elder-abuse-national-legal-responses. Some really sensible suggestions have emerged from the report which are worthy of implementation.

For example, the idea of a national register for enduring powers of attorney.  In our experience it is not unknown for different members of a family to take their elderly relative “lawyer shopping” resulting in multiple documents which conflict with each other.  The “front line” for the use of powers of attorney is often a financial institution.  Ensuring staff at Banks receive training in the legal process for accepting a power of attorney is welcome.  Read the rest of this entry »

Marriage, divorce and your Will

Posted on May 23rd, 2017

It is not uncommon for an individual to overlook reviewing his or her Will at the time of marriage, divorce or separation. Section 12(1) of the Succession Act provides that a Will is revoked by the marriage of the Will maker. However, if a Will is made in contemplation of marriage then the subsequent marriage of the Will maker does not revoke the Will.  

However, if an individual makes a Will in favour of his or her spouse and then marries that person, the Succession Act provides that the disposition to the person to whom the Will maker is married at the time of his or her death will not fail (i.e. the surviving spouse can receive his or her share under the terms of the Will).  Read the rest of this entry »

Three things to consider when leaving a gift of real estate in your Will

Posted on May 11th, 2017

The idea of leaving a specific gift of real estate in a Will appeals to some people. If a specific gift of real estate is going to be given, the following three things need to be properly considered:

  • ademption – if a specific gift of real estate is left in a Will but it has been sold before death, the legal principle of ademption provides the gift fails. Even if the sale proceeds were used to buy a new house, the gift will fail unless the Will is drafted to specifically contemplate this.
  • mortgages – did you know that under Section 145 of the Conveyancing Act, a mortgage over a property which is specifically gifted under a Will attaches to the gift (unless the Will expressly says otherwise). This means the beneficiary who is gifted the property will ultimately be responsible for repayment of the mortgage unless there is an express intention against this in the Will.
  • capital gains tax – while a principal place of residence is exempt from capital gains tax,  investment properties are not. A beneficiary who receives a property will take it subject to any capital gains tax liability and this often isn’t thought about until the beneficiary goes to sell the property and is hit with a tax bill.

Read the rest of this entry »

Elder abuse – wills and suspicious circumstances

Posted on March 9th, 2017

Helping elderly parents write a new Will can create difficulties, particularly if there are disputes in the family.

In a recent case of Estate Stojic, Deceased [2017] NSWSC 168, Mr Stojic had 5 children from different partners.  His last Will was made shortly before he died.  Mr Stojic ran a business and he chose one of his sons to run his company after his death.

Read the rest of this entry »

Hospital applies for guardianship orders

Posted on February 15th, 2017

In the recent case of NEJ [2017] NSWCATGD 1, the NSW Civil and Administrative Tribunal has allowed an Area Health Authority standing to apply to it for guardianship orders concerning a patient in hospital.  The patient had complex health issues and had been in hospital for some time. An Occupational therapist assessment found that it was unsafe to discharge her home.  

The purpose of the hospital’s application was to determine whether a guardian should be appointed to assist in the process of planning for her discharge from hospital.   The patient did not want to move into aged care and was resisting plans for her future.

Read the rest of this entry »

Spending Mum’s money

Posted on February 15th, 2017

spending money mum A recent case in the Supreme Court (Lindsay v Arnison [2017] NSWSC 41) highlights a need for family members to take seriously the requirement to keep proper financial records when helping aged parents pay bills and operate their accounts.

 

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