Wills & Estates

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

A minor is the legal description of a person under the age of 18 years. As a general rule a minor cannot make a will.

A person convicted of a crime is not generally prohibited from benefitting under a will. However under the Forfeiture Rule, a murderer cannot benefit under the will or intestacy of the victim nor will the murderer be granted letters of administration.

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?

The Succession Amendment (Intestacy) Bill 2009 (“the Bill”) was assented on 9 June 2009. It will come into effect from early next year 2010. The laws will change how estates are distributed if the deceased die intestate, i.e. without a valid will. A person who dies without leaving a valid Will is referred to as “the intestate”.

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.

Debts do not just disappear when you die. Effective estate planning includes ensuring you are debt free when you die or alternatively leaving enough money behind so that your family are not left dealing with your debts.

In a recent judgment of the Supreme Court in Re Fenwick: Application of JR Fenwick & Re “Charles” [2009] NSW SC530 the Court considered and applied for the first time new provisions of the Succession Act 2006 (NSW), which confer power on the Court to authorise the Registrar to make, alter or revoke a will on behalf of a person who lacks testamentary capacity.

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.

It is settled law that a solicitor retained to draw a will and ensure that the will drawn up takes effect in accordance with its terms owes a duty of care to an intended beneficiary under the will. That duty gives rise to a duty to exercise reasonable care and skill in performance of those tasks – High Court decision of Hill v Van Erp 1977 HCA 9.

The importance of estate planning is most clearly seen when unforseen circumstances occur.

For many people, one of the least enjoyable parts of estate planning is appointing your children’s guardian should you and your partner die before they turn 18.

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.

Estate planning is a term that is used fairly frequently but it's important to define and explain what's involved in such an undertaking.

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.

Former spouses are included in the definition of eligible persons in the Succession Act 2006 – Section 57(1)(d). The inclusion of former spouse as a category of eligible person enables the surviving partner of a dissolved or annulled marriage to claim against the estate of the deceased.

The categories of “eligible persons” are set out in Section 57 of the Succession Act 2006 and include.

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.

Lucy, Kate and Mark are concerned that if Rebecca dies before Ronald, he will gamble the estate away and Ronald will become financially dependent on them and/or will incur gambling debts that he will not be able to repay.

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

Consider this example: John and Jill have been married for 10 years and have recently separated. Around 2 years ago Jill’s father died and Jill received an inheritance of $100,000. These monies were deposited into a joint bank account and have been used by the parties to assist in the purchase of a property. Now that the relationship has broken down what becomes of Jill’s inheritance?

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.

Did you know that your will actually becomes invalid once you marry? Only in special circumstances does its validity continue after you marry.

Deciding how to settle a dispute - Choosing a process - Commencing litigation - Pre-trial procedures - Discontinuance or withdrawal - Enforcement of judgments - Costs of Litigation - Time limits - Lawyers

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.

Getting to see the will of a deceased can sometimes be a problem. Section 54 of The Succession Act 2006 is designed to overcome that problem.

If you are thinking about estate planning you should also think about the arrangements you'd like for yourself when it comes time for your farewell, this can be done by drafting a directive along with your will.

The general rule is that everyone should be able to enforce their rights in the Courts – poverty should be no bar to justice.

The approach to the issue of determining testamentary capacity has changed little since the 1924 decision of Bailey in which the following principles were set out.

The making of an Order appointing the NSW Trustee & Guardian the manager of a person’s estate does not in all circumstances lead to the conclusion that the managed person lacks testamentary capacity during the currency of the order.

The doctrine of suspicious circumstances was explained in the case of Vernon v Watson (2002) NSWSC.

A claimant has 12 months from the date of the deceased’s death to bring a claim for provision from the deceased’s estate. Under s58(2) of the Succession Act 2006 (NSW) the court may extend the time limitation where the claimant can show ‘sufficient cause’.

It is often said that concepts of testamentary capacity and knowledge and approval of a will are distinct, and that the issue of knowledge and approval only arises once it is found that a willmaker has testamentary capacity.

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

Where documents are referred in a testator’s will but are not duly executed in accordance with statutory requirements, i.e. signed by the testator in front of not less than two witnesses who also signed the document in front of the testator and each other, those documents may be incorporated into the Will and included in the probate if they fulfil the following requirements.

Section 13 of the Succession Act 2006 provides that, subject to a contrary intention in the Will, divorce revokes, in the existing Will.

Section 12 Succession Act 2006 specifies the effect of marriage on a Will and its validity.

A joint Will is a Will dealing with the property of two or more testators in the one Will. Mutual Wills are Wills usually made by separate documents in which two or more persons execute separate Wills conferring reciprocal benefits upon each other.

Section 11 of the Succession Act 2006 specifies the manner in which a Will can be revoked.

When deciding the validity of a will a Court usually has to decide whether a document not duly executed sets out the testamentary intentions of the deceased.

Although it may be blinding obvious, a person who is unable to see or swear he or she saw the testator sign a document may not act as a witness to a Will - section 9 Succession Act 2006. A Will not properly witnessed, may be an invalid Will.

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

John and Mavis were married. John had one daughter Edwina. In 2001 John made a Will leaving his house to Mavis and the residue of his estate to Edwina. In 2005 John sold the house. John died after the house was sold.

Section 10 of the Succession Act 2006 appears under the heading “Can An Interested Witness Benefit From A Disposition Under A Will?”

To make a valid will a person must have testamentary capacity which is described as being “... of sound disposing mind when the will is made and there must be no coercion which overpowers the volition of the testator” – Hall v Hall (1868).

There are a number of times in your life when you should review your will to make sure that it will give effect to your intentions in relation to your property and estate.

Undue influence in probate is different from the equitable doctrine of undue influence.

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.

When a person dies without a will institutions such as banks, insurance companies and superannuation funds will often require someone to be granted Letters of Administration before funds of the deceased are released.

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.

The most popular warning of wills and estates law is to always have a will. It appears that only two options are available: intestate or testate. But even having a valid will can bring about a new option in dealing with an estate if a deceased had more debts than assets, it is necessary that the estate is treated differently than from a normal administration by virtue of the Probate and Administration Act 1898 (NSW).

Most of us are probably aware that upon the creation of a trust, it is the responsibility of a trustee to hold the trust property on behalf of one or more beneficiaries – also known as the ‘beneficiary principles’.

Most of us are probably aware that upon the creation of a trust, it is the responsibility of a trustee to hold the trust property on behalf of one or more beneficiaries – also known as the ‘beneficiary principles’.

One of the essential requirements for making a will is that the testator - the will-maker - has the mental capacity to do so, that they know what they are doing. The same requirement exists for revoking a will, and giving someone an enduring power of attorney does not give the attorney the power to make a will.

The bond between a pet and an owner can sometimes be so strong, that some people have actually named their pets as beneficiaries after their passing. Many of us have probably read or heard stories someone leaving instructions in their will for the maintenance of their pets, and some of us may have even guffawed at such a practice. However, the fact remains, that many people are rather quite attached to the pets and animals that they own, and there may even be a few readers who are wondering if gifts for maintenance can be made to their own animals. Does Australian law actually allow an animal to become a beneficiary?

The bond between a pet and an owner can sometimes be so strong, that some people have actually named their pets as beneficiaries after their passing. Many of us have probably read or heard stories someone leaving instructions in their will for the maintenance of their pets, and some of us may have even guffawed at such a practice. However, the fact remains, that many people are rather quite attached to the pets and animals that they own, and there may even be a few readers who are wondering if gifts for maintenance can be made to their own animals. Does Australian law actually allow an animal to become a beneficiary?

The taxation of estates can be quite complex depending upon the assets held by the deceased. For complex estates, it is important for the executor to have an understanding of relevant taxation principles. An executor’s choices when administering an estate can have a significant effect on the amount of tax paid and who pays the tax.

The taxation of estates can be quite complex depending upon the assets held by the deceased. For complex estates, it is important for the executor to have an understanding of relevant taxation principles. An executor’s choices when administering an estate can have a significant effect on the amount of tax paid and who pays the tax.

A Living Will is a document created to clarify intent with regard to future health concerns and treatment. The document itself is legitimised by setting up specific medical Enduring Power of Attorney while a person is in sound mind and able to do. This Power of Attorney may be held with a family member or other trusted person who is given the rights to make decisions regarding health and treatment when the person is no longer able to do so.

Most of us have seen will kits in a newsagency, or seen them advertised on-line or in the press. Buying one is certainly cheaper than seeing your solicitor to make one, but do they work?

Powers of Attorney are documents that have been around for hundreds of years. Put simply, a Power of Attorney is a document whereby one person – the "donor" – gives another – the "attorney" – the power to sign legal documents on their behalf. They can be given by companies or individuals. For example, banks will sometimes appoint senior staff members to sign various specified documents on the bank’s behalf.

If you have a combined or blended family, you may wish to consult with a lawyer to consider some estate planning strategies suited to your needs. When people enter into a second relationship, they often have separate assets. They may wish to provide some or all of those assets to their own children, rather than to their new partner and his or her children. There are laws of family provision that must be taken into account when estate planning in these circumstances.

Most of us know what a will is, and if we think about it (which often we don't) we know we should have one. Many Australians, however, do not have one, and this can cause extra expense, delays and complications when they die.

When someone dies, the terms of their will can cause jealousy, distress or upset in a surprising number of cases. What can someone do if they think that they have not been treated fairly in a will?

All working Australians will be members of a superannuation fund, and with that in mind, it’s no surprise that according to the Australian Prudential Regulation Authority, the total amount of superannuation assets at the end of the 2010 financial year was $1.23 trillion. Many individuals will have large superannuation benefits waiting to be cashed upon retirement, however, some people will sadly pass away before they are able to make a claim on their benefit. So the question will arise of how will a person’s superannuation entitlements be dealt with upon their passing, is a natural line of inquiry.

People who are insolvent, may choose to create a trust to defeat the interests of a creditor. However, for anyone who wishes to create a trust specifically to bypass a creditor’s interests, the law does have the power to render such trusts void, if the effect or the purpose of the trust was to avoid a creditor.

Who will watch your children in the event of your death? If you have children younger than 18 years, this is a very important consideration. In your will, you may nominate one or more people to be your child's guardian in the event of your death. This may help to avoid any future disputes between family members by making your intentions clear. The question of 'who' is very important to any parent when nominating a guardian for their children, as well as what 'will' happen.

It’s probably safe to assume that many of us will make the appropriate provisions from our estate to family members in the event of our passing without too much issue. However, there may be instances where a person may not wish to make the appropriate provisions to family members for whatever reason they may be, and if such a thing does occur; is there a moral duty for family members to make the appropriate provisions? Furthermore, can the courts compel individuals to fulfil a ‘moral duty’ in providing for family members?

Thinking about making a will can be overwhelming. Part and parcel of writing a will is appointing an executor. Many people may not understand the responsibilities of an executor – whether it is appointing one or being named as one.

Most of us realise that it is a smart step to have an appropriate will in place, but its important to make sure that your next of kin knows where the will is kept. If a will cannot be located, the estate will be dealt with as an intestate estate and your assets will be distributed according to the law and not necessarily as you would have wanted. The beneficiaries will also ultimately bear higher expenses.

Most of us realise that it is a smart step to have an appropriate will in place, but its important to make sure that your next of kin knows where the will is kept. If a will cannot be located, the estate will be dealt with as an intestate estate and your assets will be distributed according to the law and not necessarily as you would have wanted. The beneficiaries will also ultimately bear higher expenses.

Any person who has a familiarity with matters involving family provision in Australia, may have either encountered the concept of ‘moral duty’, or have heard the term used in regards to such matters. The concept of moral duty and family provision legislation has become synonymous with one another that it would be a surprise to some that the term, ‘moral duty’, does not actually appear in any legislation dealing with family provision. Naturally, if moral duty has not been enshrined in legislation, where does the concept come from? Further questions may revolve around, how, and when, is the concept applied in regards to family provision.

When a person dies leaving a valid will, their estate is distributed according to the terms of their will. Each state has unique legislation setting out the rules for administering the deceased’s estate.

A person can donate their organs after their death. It is advisable to think about whether you would like to donate your organs when drafting your will and informing your relatives.

People usually hear about appointing a guardian in one of three ways: their solicitor may talk about it when discussing a will, a financial advisor may ask if there is one in place, or a retirement village or hospice may require a prospective resident to have one.

A will may be disputed for a number of reasons and one issue that can arise is a lack of ‘testamentary capacity’ which may mean that the person is lacking the soundness of mind to draft a legally binding will. It is important when a person drafts a will that they have sufficient decision-making capacity when the will is drafted, otherwise the will may be considered invalid, and the courts may decide that a person has died intestate (without a valid will) and their assets will be distributed in line with intestacy laws.

Estate planning is important. One of the essential purposes of estate planning is to ensure that your beneficiaries receive the maximum possible benefit from your estate. This involves determining the most financially efficient and tax effective way to distribute your estate on death.

When a person passes away and leaves a valid will, it is up to the executor to make the funeral arrangements, obtain a grant of probate, pay off any debts to creditors and administer the estate of the will-maker according to their wishes. Needless to say, the responsibilities and duties of the executor are quite significant, so it is important that they carry out their role appropriately.

More and more of us today are doing the wise thing, and appointing attorneys and guardians by Enduring Powers of Attorney and Guardianship Appointments.

The words used in wills – much like other legal documents – need to be chosen carefully, because terms and phrases can easily be misconstrued and can have multiple meanings. As the person drafting a will, you may know what you meant in the will, but for others who are trying to decipher your wishes, they might have a bit more trouble. Keep in mind that in most instances, an executor and any beneficiaries will only be privy to the information in your will only after you have passed away. So needless to say, you won’t be able to clarify your wishes to the parties involved if any misunderstandings do arise. In order to ensure that your executor is able to administer your property and estate in line with your wishes, it’s important to bear in mind that you should always choose your words carefully when drafting a will.

Most of the disputes about wills fall into one or the other of two categories. These are either that someone has not been provided for adequately in the will, or that some formality has not been complied with.

Premier Jo Bjelke-Petersen of Queensland has been a rather controversial figure in Australian political history, but one of the lesser known facts about him is that he was responsible for the end of death and estate duties in Australia. For many years both the individual states and the Commonwealth imposed death duties, known as estate duty for the Commonwealth version. Premier Jo abolished death duty in Queensland, and the resultant rush of investment into Queensland led to his lead being followed throughout Australia, so there are no death duties as such in our country.

The position of trustee isn’t an overarching generic term that refers to a specific role, but rather, a trustee can encompass a number of different types, all tasked with fulfilling certain duties and responsibilities depending on the trustee type.

A person who creates an express trust is the trustee (the settlor), but if the trust is a transfer of property, then whoever the property is to be transferred to on trust, will assume the role of trustee.

The various duties of the trustee are of great importance and anyone who holds the position must act in the best interests of the trust. However, there are many different classification of trustee and some of their responsibilities may be associated with how they are appointed.

Many individuals will have large superannuation benefits waiting to be cashed upon retirement, however, some people will sadly pass away before they are able to make a claim on their benefit. So the question will arise of how will a person’s superannuation entitlements be dealt with upon their passing, is a natural line of inquiry. Well, a member of a superannuation scheme is able to create a gift to their beneficiaries, but there are many considerations that need to be taken into account when bestowing a superannuation death benefit, and the process can be complex.

One of the most common complaints about lawyers and the law is the language used, which has even produced its own name, “legalese”. Why is that?

Making a will is probably the last thing on your mind right now. Even as people age and raise a family, the idea that our mortality is potentialy a problem is understandably far away from consideration. However, just as people strive to provide for their family as best they can, it is important to take some time to prepare a plan for the possiility that you may no longer be around for your loved ones.

Making a will is probably the last thing on your mind right now. Even as people age and raise a family, the idea that our mortality is potentialy a problem is understandably far away from consideration. However, just as people strive to provide for their family as best they can, it is important to take some time to prepare a plan for the possiility that you may no longer be around for your loved ones.

In order for a document to be legal, the statutory requirements need to be adhered to in order for it to be valid, and a will is no exception. However with that being said, the rigid formality required for other types of legal documents have been tempered when it comes to wills under certain circumstances and the Court can dispense with the requirements for execution, alteration or revocation of a will.

It probably goes without saying that drafting any document that has a legal component requires specificity and the creation of a will is no exception. When a person creates a trust for the benefit of another, the law requires that the trust fulfils all of the legal requirements in order for the trust to be considered valid. If all of the essential elements of a trust are not evident, there may be a danger that the trust may be considered as void, voidable or unenforceable.

Drafting a will can be a long, complicated process. Once it has been witnessed and filed away for safekeeping, it can be tempting to rarely think about it again. But keeping your will up to date is extremely important. Wills are often made years before a person dies, and there may be significant changes to an estate between when the will was written and when the will is executed.

Drafting a will can be a long, complicated process. Once it has been witnessed and filed away for safekeeping, it can be tempting to rarely think about it again. But keeping your will up to date is extremely important. Wills are often made years before a person dies, and there may be significant changes to an estate between when the will was written and when the will is executed.

Around half of all Australians do not have a will, so they will not have a say in what happens to their estate when they die! Surprising, but true.

Having children changes a person’s worldview, and formerly unimportant issues all of the sudden take on a different complexion when we have kids of our own. There’s nothing quite like being responsible for another person to overhaul someone’s life, and all of the sudden matters such as schooling and kid friendly restaurants seem to take prominence. Because parents are responsible for a child’s wellbeing, issues such as what happens if the parents of a child unexpectedly pass away becomes a matter that needs to be dealt with – irrespective of how uncomfortable the subject may be. Anyone who has a child under the age of 18 must consider the prospect of appointing a testamentary guardian to look after their child if the worst does happen. Deciding who should be your child’s testamentary guardian if you and your partner pass away, may prevent additional heartache if the worst case scenario does arise, while ensuring that the child will be properly cared for.

A recent decision from the Supreme Court of New South Wales has highlighted the need to keep your Will updated. In the NSW Trustee and Guardian v Ritchie [2011] the NSW Trustee applied to the Court for orders in relation to the administration of the Estate.