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Writing your own Will and Will Disputes

Will Disputes – A Cautionary Tale Against Trying to Write Your Own Will:

Etherton v Mitchelmore [2024] NSWSC 170

Caterina Felice Bohen (‘the Deceased’) died in August 2021. She was survived by two adult daughters and five grandchildren. In a will dated 10 August 2016, the Deceased purported to leave her grandchildren most of her estate. At the end of 2020, the Deceased handwrote a note on the back of a used envelope that read ‘I, Caterina Felice Bohen wish to leave my house to Robin Etherton of Roseville, as he was the only one who ever helped me when I needed help’. She then gave this to Robin Etherton without retaining a copy. The central issue in this case was whether this document could be accepted as one that contained the Deceased’s testamentary intentions. [...]  READ MORE →

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The importance of making a will as a Parent.

You can’t choose your family: sibling rivalry over adult son’s claim for further provision, highlights the importance of making a will as a Parent.

A son’s application for a late inheritance claim was recently turned down by a Queensland court. After more than two decades of rent-free living in one of his father’s residences, the son requested further provision from the estate. This case demonstrates the challenges that may occur when a parent dies without leaving a will and provides important guidance for anyone hoping to seek further provision from the estate without the necessary supporting evidence.

The Case: Day v Peake [2023] QDC 178

Facts:

The applicant, Lloyd Day, is the adult son of the deceased, Desmond Gunston Day, who died intestate (without a will) at 95 years old on July 25, 2020. Desmond was married twice and fathered seven children, six of them survived him.  The eldest child, Rosemary Peake, was granted letters of administration (a court order which allows the administrator to distribute assets and manage the estate) on August 2, 2021. Scott Day, initially applied for further provision from the estate on October 19, 2021, with Lloyd joining the application on March 30, 2022. Scott and Lloyd (the applicants) lived in the two properties namely 51 and 55 Sutherland Street Calliope, that comprised the entire estate, valued at approximately $440,000. [...]  READ MORE →

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Can a Will signed on an iPad be admitted to Probate?

This was the key issue of determination in a recent South Australia Supreme Court decision.

In Re Estate of Elizabeth Seabrooke (‘deceased’) [2023] SASC 122 (‘Seabrooke’), Elizabeth Seabrooke (‘the deceased’) died on 24 April 2022. Prior to her death, she executed a Will on an iPad, signed with an iPad pencil and executed in the presence of two witnesses who did the same. The deceased then scanned the electronic Will and sent it to herself.

The deceased named her daughter Natalie Beresford as executor (“the executor”) of the Will. On application to have the will admitted to probate, the executor sought to admit a printed copy of the scanned electronic will as the last will and testament of the deceased. The original electronic will could not be located on the iPad on which it was prepared and signed, however a copy was saved on a USB which had been lodged to the Registry. The matter was referred from the Registrar to the Supreme Court for determination. There was no argument that the Will did not contain  the necessities required such as a clause revoking all prior wills and codicils as well as a named executor and beneficiaries of the deceased’s property and assets. What was left for the Court to determine was whether a copy of the ‘document’ executed as a last will and testament should be admitted to probate. [...]  READ MORE →

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When there’s a will, there’s a way!

Aveyard v Selwood; Philpott v Selwood; Riley v Selwood [2024] NSWSC 29

Where there’s a will, there’s a way

A recent Supreme Court Decision has demonstrated that when there is a will that does not allow for the “proper maintenance, education or advancement in life” of eligible persons ie family members, the Court will make an order for provision out of the estate of the deceased to do so.

This case involved three applications made for provisions under s 59 of the Succession Act, submitted by late John Raymond Selwood’s (the Deceased) daughters regarding the Deceased’s will dated 23 March 1984.

The Deceased’s will left his estate as follows: [...]  READ MORE →

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NCAT affirms Disciplinary Decision to Disqualify Certifier from Registration for 10 years”.

Case Review: Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4

The NSW Civil and Administrative Tribunal (NCAT) has recently affirmed a decision of the Commissioner for Fair Trading (Commissioner) to cancel a certifier’s registration and disqualify him from registration for 10 years. Orfali v Commissioner for Fair Trading [2024] NSWCATOD 4 (Orfali Case) is a case that exemplifies the necessity for certifiers to ensure they comply with conditions of their certificates of registration.

Background

The Applicant, Mr Orfali, applied for an NCAT review of the Commissioner’s decision to cancel his registration as a registered certifier and disqualify him from registration for a period of 10 years. [...]  READ MORE →

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The Trouble with the Bank of Mum & Dad

How is the transaction characterised – is it a “loan” or a “gift”?

In Australia even if a parent thinks a transaction is a “loan”, unless there is evidence (ideally by being documented) there is a presumption that the transaction was a gift. Therefore if the parent actually intends the money to be repaid at some point in time it should be documented in a relevant loan agreement or deed.

Documentation of the transaction is essential

Documentation of the arrangement is also important for a number of other reasons which include the following:

  • Sometimes these arrangements may be in place for years or even decades and it is important to clearly set out what the intentions of the parties are so as to minimise the chance of disagreements down the track.
  • Depending upon the terms and the circumstances, a properly documented loan agreement or deed may be able to provide some protection should the debtor become bankrupt or divorced.
  • Documentation can be critical in confirming the arrangements regarding the loan in the event that a parent becomes incapacitated or passes away.
  • A properly documented arrangement can also allow for appropriate security measures being put in place such as a registered mortgage or at the very least a caveat over real property.

Consideration of how these arrangements will impact on your estate planning

If you have provided “loans” or “gifts” to children and these benefits have not been equal between the children during your lifetime you should consider whether your will needs an equalisation clause so that all your children will ultimately end up with substantially the same benefits during your lifetime and as part of your estate. [...]  READ MORE →

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The Bank of Mum & Dad

With interest rate pressures and strong property prices the path to become a first home owner can be difficult to achieve without family support.

Parents are more than ever needed to financially help their child to acquire the first home.

But where their child has a partner, parents are likely to be looking for some certainty – either that in time they can have their advance returned to them; or if their child’s relationship encounters any problems, that their contribution is repayable in full. Family Law can create troubles for the bank of mum and dad. [...]  READ MORE →

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Reforms to the Retirement Villages Act

Retirement villages and “Over 55 Lifestyle Estates” are becoming popular post-retirement living arrangements among the Australian ageing population. While these communities offer unique lifestyles, it is crucial to consider the potential complexities and issues which may arise in respect of post-retirement living arrangements.

The establishment, operation and management of Retirement villages and retirement village contracts are subject to the Retirement Villages Act (NSW) 1999 (the ‘Act’).In 2021, significant changes were introduced to the Act to safeguard certain rights of residents. [...]  READ MORE →

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Basic Will For a Competitive Price

Wills – not exactly the best BBQ conversation material.  If you are like most people, you only tend to think of Wills in the dead of night, worrying about what will happen to your loved ones if you die. Younger people also do not tend to think about preparing a first Will however with marriage, the purchase of assets (like a family home) and the start of a family, having a Will prepared is a necessity.

If you happen to see one of those TV commercials late at night promoting the benefit of the ‘do it yourself’ simple will kit it may at first glance seem like the perfect solution – quick and cheap. [...]  READ MORE →

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Wishful thinking: when is a “wish” expressed in a will binding on the executor?

A recent New South Wales Supreme Court case has once again highlighted the critical importance of careful wording when drafting a will.

The will in question made a bequest to nieces and nephews of the deceased, then a clause of the will went on to say:

It is my wish that the funds be used to assist in purchasing a property and assist in their education but does not include any HECS or equivalent educational debt.”

The Court was asked to decide the following question about the wording of this clause: were the gifts to the nieces and nephews to be used for no other purpose than property purchase and education?  In other words, was the deceased’s “wish” binding on the executor of the will and the beneficiaries? [...]  READ MORE →

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Solvency? I’m no expert, but …

By Ewurama Appiah, Law Clerk at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Proving solvency (or insolvency) can be a critical, complicated, and costly aspect of insolvency litigation. However, it is not always necessary to have an expensive expert to establish solvency. The Supreme Court of Queensland recently handed down a judgment in favour of a respondent to a winding up application, in which the respondent’s solvency was established by documents other than external expert reports. [...]  READ MORE →

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Collecting Money: which court should I pick?

By Ewurama Appiah a Law Clerk at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Do you have a debt to collect and are you unsure in which court to file your claim? Read on to find out more information on the steps you should take to ensure you maximise your ability to recover that debt!

Debt recovery through the courts is largely regulated by state and territory law and the procedural rules of the courts. Recovery of debts may include the repossession of assets or other legal enforcement of security interests. [...]  READ MORE →