Coercion in making a will

With easy access to cheap and even free will kits why pay a lawyer to draft your will?

Is it is possible to disinherit your children? Some will makers believe it is or should be.

The Family Provision Act (1982)(FPA) restricts that freedom to make a will by allowing classes of people, defined in the FPA as “eligible persons”, to make a claim if those persons consider they have been left with inadequate provision for their proper maintenance, education and advancement in life.

Some of the world’s super rich such as Bill Gates and Warren Buffet have famously left the bulk of their estate to charity and their children only a small fraction of their fortunes. Can you safely leave the majority of your estate to charity? Can you challenge your parent’s will if they have left a larger portion of their estate to charity than to you?

When making your Will one of the key decisions you must make is who to appoint as your executor.

The case of Wingrove v Wingrove (1885) is the authority for the proposition that a testamentary disposition does not have a testator’s knowledge and approval if the testator was coerced into making a bequest.

If the deceased died after 1 March 2009, proceedings for a family provision orders are commenced pursuant to the Succession Act 2009. The Family Provision Act 1982 was replaced by the Succession Act 2009 on 1 March 2009. A claimant has 12 months from the date of death in which to commence proceedings for a family provision order.

In May 2009, the Supreme Court issued a Practice Note as to the conduct of Family Provision Act cases - SC Eq 7 – Family Provision – (“the Practice Note”) which applies to claims both under the Family Provision Act 1982 and its replacement, Chapter 3 Succession Act 2006 (NSW).

A claim for an order from a deceased person’s estate for a family provision can be made up to 12 months from the date of death.

As Australia’s population rapidly ages euthanasia is becoming an ever more pressing issue. Some people who advocate euthanasia are already at a stage in their illness where they require assistance to take the own lives. This puts any person assisting to bring about the death who is also a beneficiary of the estate in a difficult legal position. Not only do they risk criminal prosecution but it can affect their position as a beneficiary of the estate of the person wishing to die.

Depending the size of an estate and the nature of the will, being appointed and executor can be an onerous task. For example if the estate is large and includes a variety of assets an executor may spend many hours arranging the sale of those assets to realise their value before distribution. If the will is contentious the executor may be named as a defendant in proceedings brought by beneficiaries or claimants under the will.

A recent decision in the New South Wales Court of Appeal analysed what is ‘proper maintenance education and advancement in life’ for able bodied adult children – SMILEK V PUBLIC TRUSTEE [2008] NSWCA 190.

The Family Provision Act (1982)(FPA) allows the court to designate property as “notional estate” and make Orders with respect to notional estate in order to satisfy an order for provision in claims by an eligible person.

When Barry signed his will he failed to pick up the mistake. When Barry died “The Gin Palace” had already been sold and as a result Tina was left without an inheritance. When such an error is made there are several options open to a beneficiary in Tina’s position.

If someone promises to take care of you financially and then they die, what do you do?

In September Noreen handed Ngaire an envelope and said, “This is my will. You don’t need to read it now. Just hold on to it until I die.” Ngaire did not open the envelope but put it safely away in her top draw.

The rule with wills is that a later valid will prevails over an earlier valid will. The party claiming that the later will should prevail has the onus of proving that the later will is valid.

Age, even great age, does not prevent a person having testamentary capacity to make or change their will. It is not even necessary that the willmaker be able to read or write, as long as appropriate steps are taken to make sure that they understand the will.

Before Jim and Genevieve married they decided to execute mutual wills. A mutual will is where each individual has a separate will but they confer reciprocal benefits on each other. Jim’s will stated that he would leave all of his estate to Genevieve and if she died the estate would be divided equally between their two children Julia and Jonty. Likewise Genevieve’s will left everything to Jim and to their two children if he died.

We acted for the son of the first marriage of the deceased. The second wife of the deceased sought to Probate an unsigned Will.

In Estate of Slavinskyj (1989), testamentary dispositions written on the back of a packet of cornflakes were held to be valid.

Lucy’s father died some years ago and her mother, Esther died late last year. Lucy has an older sister who lives overseas and a younger brother. After searching Esther’s house high and low and contacting Esther’s lawyers, Lucy was unable to find any will made by her mother. Esther had a house in Petersham, two bank accounts, a superannuation fund, a car and various personal effects. When Esther died she had a modest credit card debt as well as some outstanding utility bills.

Under s26 of the Status of Children Act 1996 a party to proceedings may apply to the Supreme Court for an order requiring a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of the child.

For many, the processes of estate planning involves thinking about their family and loved ones - trying to take their circumstances into account and considering what measures they would like to take to promote their future happiness.

To begin with if you have a complex asset structure an estate planner will be invaluable in making sure your assets are devolved efficiently and in manner that affects your wishes. But more importantly a lawyer is in the best position to ‘future proof’ your will. That is draft it in a way that reflects your wishes and prevents your will being challenged once you die.

A prominent Cricket fan wishes to make a will, but doesn’t trust anyone associated with the consortium for which he barracks to witness it for him.