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How Effective is my Will?

I am hearing about all these claims against estates – how effective is my Will?

Although claims against Estates get coverage in the media, most Estates are in fact completed on the basis of the wishes of the deceased in accordance with their Will.

It should be remembered the starting point at law is that a person is entitled to leave his or her estate to whoever they choose. A person has freedom to choose their beneficiaries – whether they be family members, other persons or their favourite charity.

Claims against estates under the “family provision” parts of succession law allow a limited group of people to seek provision out of an estate if they were left out or feel greater provision should have been made for them.

In simple terms, these “eligible persons” are spouses, de facto partners, children (including adult children) and grandchildren or members of the household who were dependent upon the deceased. But they must convince the Court why the claim should be entertained.
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Mirror Wills and Mutual Wills

Mirror Wills and Mutual Wills – Clearing up the confusion

Mirror Wills and Mutual Wills – they both start with “M” but what is the difference?

Mirror Wills (or reciprocal Wills) are very common between spouses or people in long term relationships.

Each party makes a Will “mirroring” the other’s Will. The Wills often leave everything to each other (other than any specific gifts such as  jewelry or other personal items) and then to their children if one has already died.

Mirror Wills reflect that the parties have common interests. Mirror Wills have the advantage of simplicity. Also, they do not unduly hamper the survivor who can change his of her Will to take account of changing circumstances.

Mutual Wills are a contract between two people to make Wills on binding terms. The terms usually provide that one party can change their Will with the prior consent of the other but not otherwise.

If one party dies, the contract will be binding on the survivor. The long established legal principle is that “the first that dies carries his part into execution and the Court afterwards will not permit the other to break the contract”.

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Why should I not do my will online?

Would you feed your medical symptoms into an online form and have your condition diagnosed without seeing or speaking to anyone? Just as importantly, would you entrust your estate planning to someone who has not met you and knows only about you what you have provided to them? You may think you know how your estate should be distributed after you die, but you won’t know the legislation, the probate rules or the case law that affects Wills and Estates. Your Lawyer will.

Each client’s personal circumstances are particular to them. An online form is no substitute for a consultation with an experienced estate planning lawyer. There are many circumstances that need careful consideration and advice including:

  • second marriages, or
  • that you own your property as joint tenants or tenants in common? Do you even know how your property is held? or
  • what forms part of your estate and what does not? or
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How effective is my Will?

I am hearing about all these claims against estates – how effective is my Will?

Although claims against Estates get coverage in the media, most Estates are in fact completed on the basis of the wishes of the deceased in accordance with their Will.

It should be remembered the starting point at law is that a person is entitled to leave his or her estate to whoever they choose. A person has freedom to choose their beneficiaries – whether they be family members, other persons or their favourite charity.

Claims against estates under the “family provision” parts of succession law allow a limited group of people to seek provision out of an estate if they were left out or feel greater provision should have been made for them.

In simple terms, these “eligible persons” are spouses, de facto partners, children (including adult children) and grandchildren or members of the household who were dependent upon the deceased. But they must convince the Court why the claim should be entertained.
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Abuses of Power of Attorney

What is a Power of Attorney

A power of attorney is a document which allows you as the “principal” to appoint somebody (referred to as your attorney) who can step in and make financial decisions for you should you become incapacitated. Your appointed attorney has the authority to access your bank accounts, pay bills on your behalf and buy and sell property for you. A power of attorney document is an essential document to consider and most clients will put a power of attorney in place when they are also doing their new will or updating their will documents.

If you do not have a power of attorney document in place and you subsequently do lose capacity then your family members will be stuck with not being able to manage your financial affairs and having to make an application to the Guardianship Division of the NSW Civil & Administrative Tribunal to seek an appointment of a financial manager on your behalf.
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Promises to leave a bequest from an estate

If a promise is made to leave a bequest to you in a Will, but you are left out, there is a chance that the law will make good on that promise.

In a recent case neighbours agreed to alter their lifestyle, delay renovations to their house and provide support to their elderly neighbour as she promised to leave them her house in her Will.

However, she did not make good on her promise in her Will. The neighbours were able to obtain the house from the estate as they had acted to their detriment in a number of ways and upheld their side of the promise. The Court held it would have been unjust for the neighbours not to receive the house.

Not every case will provide this same result. The circumstances were quite particular.

The case does underline the importance of taking care when expressing testamentary intentions.

It is crucial that proper legal advice be obtained if unfortunate and expensive litigation is to be avoided. Please contact one of our Will Lawyers on 9635 7966 if you have any questions relating to the preparation or update of a Will or if you have a Will dispute.

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Evidence of a Will maker’s intentions

How far do you go to record evidence of a Will maker’s intentions

Generally, recordings of conversations without the consent or knowledge of a person is highly contentious when it is put to a Court of law to prove a Will maker’s intentions.

However, there are particular circumstances where such recordings may be admissible. If there was a legitimate purpose, the recording was important to protect fabricating conversations, where there were no other practical means of recording a conversation, and where there is likely to be a serious dispute between the parties, a Court may admit a recording as evidence.

If these criteria are met, however, the Courts exercise caution as to the accuracy of a recording capturing the Will maker’s true intent. Elderly parents are more likely to act more benevolently in a conversation. A secret recording may also be considered unfair and be to the detriment of the recorder.

If you have questions or concerns about any issue to do with preparation or update of a Will, please contact one of our Will Lawyers on 9635 7966

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Wills & Estate Planning for Blended Families

Blended families create special problems. Children of past marriages need to be considered and their interests protected, without it impacting on the needs of a current spouse or partner. The changing demographic of families in this modem age means the problems surrounding blended families are now more acute than ever.

Problem Areas

  • Will makers forget how assets are held – without intending it, assets can automatically pass to a joint owner or nominated beneficiary, and not form part of the estate of the deceased person, thus frustrating any will provision intended to deal with that asset.
  • Providing for a surviving spouse or partner, where the will maker “trusts” that person to look after the children of all relationships, not just that survivor’s own children. It is a dangerous approach, and one almost certain to create conflict between the children of the deceased and the beneficiary.
  • Failure to recognise that natural children may only have one chance of making an estate claim, forcing the issue even where there is an excellent relationship between the surviving spouse and those children.
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