Guardianship and Marriage

Posted on April 24th, 2019

The Guardianship Act provides that a person (the appointor) can sign an Appointment of Enduring Guardian document appointing a person to make certain decisions for the appointor in the event that he or she cannot make those decisions. The guardian is authorised to decide where the appointor lives, what healthcare the appointor receives (including medical and dental treatment) and other decisions in relation to the health and wellbeing of the appointor. Read the rest of this entry »

The aging process –legal mental capacity

Posted on February 22nd, 2019

Can my step child contest my will?In Re Estates Croft, deceased [2018] NSWSC 1303 a couple with 6 children, made last Wills which favoured certain children rather than each other.  This led to some children receiving more of the couple’s assets when they died.  As a consequence the children brought legal proceedings challenging the validity of both of their parents’ last Wills.  Judge Lindsay had to consider whether “unusual behaviour” by aging parents was sufficient to legally invalidate their Wills (lack of mental capacity to make a Will).  The Judge was careful to consider the evidence of their behaviour at the time of the making of the Wills.  In the husband’s case, for example, the Judge concluded that his Will was a “rational, measured response to the domestic disharmony that had confronted him over the previous 11 months or so”.   Read the rest of this entry »

Superannuation….. Who gets it when I die?

Posted on January 18th, 2019

Superannuation - who gets it when I die?It comes as a surprise to many people to learn that they do not own their superannuation and therefore cannot include their superannuation as an asset to be disposed of by Will. After the death of a member of a superannuation fund, the superannuation entitlement of the deceased person is paid at the discretion of the trustee of the superannuation fund of which the deceased person was a member unless that deceased person has filed with the trustee a Binding Death Benefit Nomination (BDBN). If the trust deed governing the superannuation fund provides for the filing of a BDBN and if a BDBN has been filed (and assuming it is correctly completed and executed then the trustee of the superannuation fund is bound to abide by that BDBN and pay the superannuation in accordance with it. Effectively the BDBN can be an extension of the Will in that it can bind the trustee to pay the superannuation in accordance with the wishes of the deceased person. It is advisable for a member of a superannuation fund to file a BDBN (if possible) however advice from an accountant should be obtained to ensure that the superannuation is disposed of in the most tax effective way and if not, that the member of the superannuation fund is aware of the consequences of his or her action. Read the rest of this entry »

What executors need to know

Posted on November 20th, 2018

What executors need to knowBeing appointed as an executor can be a daunting experience. It is an important job which needs to be carried out at a difficult and emotional time.

Here are the basics of what you first need to do when someone has died and you are the executor appointed under the will:

  1. Make the funeral arrangements.
  2. Contact Centrelink or the Department of Veterans Affairs if they were in receipt of a pension.
  3. Ensure all items of dollar and sentimental value are adequately secured, including considering whether locks to buildings need to be changed if there is a risk to the security of those items.
  4. Ensure that insurance is maintained/taken out over property such as buildings and cars.
  5. Contact a solicitor to arrange an appointment to obtain advice in relation to the estate. You should note that there is not a “reading of the will” like is seen in movies. It may not be appropriate to have beneficiaries accompany you to the appointment and this should be discussed with the solicitor by phone prior to the appointment if you are considering it.
  6. Collect the following, as best you can, in anticipation of your appointment with a solicitor:
    • Details of the deceased’s assets, liabilities and superannuation membership.
    • Details of any beneficiaries of the estate.
    • Details of the deceased’s accountant or financial planner.
    • Details of any insurance policies relating to the deceased’s assets.
    • Details of any managing agent for investment properties.

Read the rest of this entry »

Charity does not always begin at home

Posted on August 24th, 2018

Charity does not always begin at homeLever v Attorney General of NSW [2018] NSWSC 838

A Will-maker left a gift of approximately $4.5m to her nephew and his wife to create a trust to “benefit women and children in the United Kingdom“.  The Will-maker was in the process of divorce at the time the Will was made and did not want her estate to go to her ex-husband or his children.  A Trust known as the “Ellie Trust” was established in an effort to comply with the Will and the purpose of the trust was to “preserve and protect the mental and physical health of women and children who have suffered domestic violence through the provision of refuges and safe accommodation in Liverpool”. Read the rest of this entry »

Can my step child contest my Will?

Posted on August 10th, 2018

 

Can my step child contest my will?When people talk about contesting a will, they are talking about family provision claims. Under the Succession Act, only certain classes of people are eligible to make a family provision claim. These are:

  1. a spouse;
  2. a de facto spouse;
  3. a child;
  4. a former spouse;
  5. a person who was
    1. wholly or partially dependant on the deceased at any particular time; and
    2. either a grandchild or a member of the same household as the deceased at any particular time; or
  6. a person in a close personal relationship with the deceased.

Read the rest of this entry »

When Customary Law meets Succession Law

Posted on July 31st, 2018

When Customary Law meets Succession LawIn Re Estate Jerrard, deceased [2018] NSWSC 781 an indigenous young man died in a motor accident without a Will and with no spouse or children.  Superannuation death benefits were payable into his estate. His parents were his closest relatives.  The deceased had little contact with his father and lived with his mother.  His mother made a claim for the whole of his estate to be distributed to her.  She relied on Part 4.4 Succession Act 2006 (Part 4.4.) which provides that a person may apply to the Court for a distribution order under “the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous deceased belonged” (customary law). She argued that according to customary law she should receive the entire estate. Read the rest of this entry »

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 »