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Intestacy rules for distribution of deceased estates

The order of death can significantly impact the distribution of estates, as demonstrated in NSW Trustee and Guardian v State of New South Wales [2015]. This case highlights the importance of having a lawyer prepare a will for you and the necessity of regular will updates.

In this case, a mother and son were found dead in their shared home, both without a will. The persons entitled on intestacy would be determined by the sequence of death. The mother was a widow, had not remarried or entered into a defacto relationship since the passing of her late husband.  The son was unmarried and there was no record that he had ever had any children. [...]  READ MORE →

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Diagnosing Cyber Risks: The Rise of Cyber Attacks in the Healthcare Industry

Simone Brew, Principal and Gigi Au, Senior Associate of Matthews Folbigg Lawyers

It is undeniable that cyber-attacks are currently one of the biggest threats to the healthcare industry. You only need to look as far as the latest headlines that set out the unsettling details of data breaches affecting even the biggest businesses in the industry, such as Medibank and MediSecure. What is it about the healthcare industry that makes it a prime target for cybercriminals and what can be done to mitigate the risks? [...]  READ MORE →

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Undue influence, Coercion and Wills

In a recent article we outlined legal issues regarding capacity to make a Will.

A different but related question that is arising more frequently is whether a deceased person who has legal capacity has been coerced into changing his or her Will late in life. This concern is especially relevant in cases involving will disputes and individuals who may have concerns that they have been left out of a will.

Most elderly people, whilst still having legal capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing. [...]  READ MORE →

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Terms used in a Will

WILLS – DOES THE TERM “GRANDCHILDREN’ INCLUDE “STEP-GRANDCHILDREN”?

A big point of confusion in will disputes is whether “step children” and “step-grandchildren” can be included under the expressions ‘children’ and ‘grandchildren’.

When all else fails, Courts aim to determine expressions in a Will according to the intention of the deceased. In some cases, Courts may look into the nature of family relationships in order to determine the meaning of an expression such as “child”. [...]  READ MORE →

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Does Marriage Affect Your Will?

DOES MARRIAGE  INCLUDING SAME-SEX MARRIAGE AFFECT YOUR WILL?

Marriage can cause complications for existing Wills.

If a person marries after making a Will, it will be revoked. Some exceptions apply, including:

  • gifts in the Will from a person to a spouse who they marry;
  • an appointment as executor or whom the testator is married to at the time of his or her death.

Same-sex marriage in Australia has been allowed since 9 December 2017. The same laws apply in relation to Wills of same-sex couples. A same-sex marriage may make a past Will invalid subject to the exceptions mentioned above.

Considering the difficulties which arise in relation to marriage and Wills, it is important that you draft your Will in contemplate of marriage to prevent possibility of a will dispute in the future. Importantly, a Will made in contemplation of a particular marriage is not revoked by that marriage. [...]  READ MORE →

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Holiday Hacks: Cybersecurity tips for a safe and secure holiday season

Simone Brew, Principal and Gigi Au, Senior Associate of Matthews Folbigg Lawyers

As we approach the end of the year and staff begin to take a much-needed break for the holiday season, it is essential to stay vigilant about cyber security risks.

The Increase in Cyber Attacks over the Holiday Season:

In 2021, Cisco identified in their Cyber Security Threat Trends report that phishing attacks had a 52% increase during the holiday period. There are numerous reasons why we see spikes in cyber attacks over the holidays. [...]  READ MORE →

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NSW Supreme Court Draws the Line: New Restrictions on Generative AI in Legal Practice

Simone Brew, Principal and Gigi Au Senior Associate of Matthews Folbigg Lawyers

Chief Justice Andrew Bell of the Supreme Court of New South Wales (“NSW”) provided a much-needed crack down on the use of generative artificial intelligence (“Gen AI”) in his latest practice note released on 21 November 2024. Supreme Court Practice Note SC Gen 23 (“Practice Note”) provides guidelines on the use of Gen AI by NSW judges, legal practitioners, and unrepresented individuals. The Practice Note will come into effect from 3 February 2025. [...]  READ MORE →

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Family Provision Claims in a Deceased Estate

A common question posed by our clients is: “who can challenge my will if they believe I should have left them something, or I have not left them enough?”  While a willmaker has the freedom to distribute their assets as they see fit, this freedom is not absolute. It is crucial to regularly update your will for peace of mind in light of your changing circumstances.

Understanding Family provision Claims

Whilst a willmaker has the freedom to make a will leaving their assets to whomever they like, this freedom is nowhere near absolutely. It is still essential that you always update your will. In our experience, we see that people tend to focus on ensuring they have a will when they go overseas or when they purchase property but it is important for peace of mind to have a will at all times. In New South Wales, the law recognizes that a willmaker has a responsibility to provide for certain individuals who may have a “moral” claim to their estate. This is particularly relevant in the context of family provision claims, especially for those who feel they have been left out of a will.  Here’s a summary of who can contest a will based on this legal framework: [...]  READ MORE →

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Executors of Estates

Traps and liability issues for Executors of Estates

You are appointed as Executor of an Estate. You appreciate the confidence expressed in you, and you are more than happy to help your relative or friend.

It can’t be that hard, can it?

What is often not appreciated is the responsibility that comes with being the Executor of an estate and that an Executor can be personally liable if the legal requirements are not performed properly.

The basic requirements are:

Executor’s role. An Executor is required to uphold the deceased’s Will and put into effect the deceased’s wishes as expressed in the will. This usually requires the Executor to obtain a Grant of Probate from the Supreme Court. The Grant proves to the rest of the world the Executors power to deal with the deceased’s assets.  An Executor has a strict duty to properly and effectively administer the deceased’s Estate. An Executor can be personally liable for a breach of that duty. Executors must act impartially and prudently. [...]  READ MORE →

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Changes to the Family Law Act

When it was first enacted by the Australian parliament to commence in 1975, the Family Law Act was a whole different way of looking at how the rights of each party to a marriage should be determined.

The prior legislation was unconstructive and took into account who was at fault for the breakdown of the relationship. Such an approach did not help parties to a marriage move on and was understandably not a positive approach for their children.

From 1975 the concept of fault was gone and all our clients needed to consider was whether or not there had been a breakdown in the relationship, regardless of who was responsible for that circumstance. [...]  READ MORE →

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Do you need to use a solicitor for your property sale / purchase?

When purchasing a home, particularly as a first-time buyer in New South Wales, using a solicitor over a conveyancer can offer several advantages, especially when navigating the complexities of a property purchase (often for the first time).

Solicitors required for Certainty / Complicated Issues / Disputes / Resolution

While conveyancers are specialists in property transactions, and can be great at what they do, solicitors provide additional legal services and protection, especially in more complicated transactions and when issues arise, such as: [...]  READ MORE →

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Navigating loss of rent claims and repair obligations in strata schemes

A recent Supreme Court NSW decision (The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760) provides guidance as to the obligations of strata schemes and strata lot owners in cases where water penetration damages a strata unit and loss of rent is claimed by the affected lot owner.

Facts

The case involved Ms Selkirk, an owner of a strata unit in a Darling Point building, who had significant water leakages from her bathroom into the unit below. Whilst the owners corporation acknowledged its duty under section 106 of the Strata Schemes Management Act 2015 (NSW) to repair common property, disputes arose as to the extent of the necessary repairs and compensation payable for Ms Selkirk’s rental loss. At one stage, rent claimed was $1,750 per week at an amount in excess of $117,000.00. [...]  READ MORE →