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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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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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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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Superannuation Death Benefit Considerations in Your Estate Plan

Introduction

Superannuation has evolved significantly since its compulsory introduction in 1992, evolving into a massive $3.5 trillion industry as at June 2023. Of this total, approximately $884 billion is held in self-managed superannuation funds (SMSFs). For estate planning, understanding what happens to your superannuation death benefit upon passing is crucial.

Who can receive a Superannuation Death Benefit?

A superannuation death benefit is not considered an asset of the deceased’s estate. Instead, it is governed by specific regulations: [...]  READ MORE →

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Claims against an Estate

THE NEED FOR DISCLOSURE WHEN THERE ARE CLAIMS AGAINST AN ESTATE

A person is entitled to leave their estate to whoever they choose. However, there may be circumstances in which a person has been left out of a will and believes they should have been included.  This situation often leads to family provision claims, as “eligible persons” can apply for a family provision claim against an estate. In simple terms, “eligible persons” include spouses, de-facto partners, children (including adult children), grandchildren, and members of the household who were dependent on the deceased. [...]  READ MORE →

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Capacity Issues In Estate Planning

Establishing legal capacity is crucial, especially when contesting a will. It’s not always as straightforward as it sounds. The Supreme Court case of d’Apice v Gutkovich illustrates this complexity. In this case, Irene Abrahams (the deceased) was found to have the capacity to make a will, despite a prior decision by Guardianship Tribunal indicating she could not manage her affairs.

What is Legal Capacity?

Generally, legal capacity requires a person to:

  • understand the facts involved regarding the decision to be made;
  • comprehend the choices available;
  • Evaluate those choices and their likely effects;
  • Communicate the decision clearly.

It’s important to note that legal capacity requirements vary depending on the context. For wills, the foundational principles were established in the 1870 case of Banks v Goodfellow, which has withstood the test of time. [...]  READ MORE →

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A Will Lawyer’s Advice relating to Capacity to make a Will

Can a person without capacity have a will made for them?

If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.

What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?

Consider the following scenario.

A person has made a will which leaves all their assets to their spouse. A few years later this person permanently separates from their spouse but forgets to amend their will. Some time later they become mentally impaired and they will no longer have the capacity to alter their will. [...]  READ MORE →

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Can an unsigned Microsoft word document be accepted by the Court as a Will?

Kemp v Findlay [2024] NSWSC 902, the Supreme Court of New South Wales (Justice Rees) was a will disputes case which considered whether an unsigned Microsoft word document constituted the last will of the deceased.

In July 2023, Andrew Findlay (“the Deceased”) passed away in a boating accident off Sydney Harbour. The Deceased had executed a will in 2015 (“2015 Will”) that left his estate to the mother of his children and the plaintiff, Ms Kemp (“the Plaintiff”). However, in 2019, the Deceased and the Plaintiff’s relationship failed, and the Deceased amended his will in a word document, leaving his estate to his three children (“2019 Will”). The Deceased’s cousin (“the Defendant”) contended the 2015 Will had been revoked and sought a grant of probate of the 2019 Will. However, the Plaintiff disagreed and sought a grant of probate of the 2015 Will. [...]  READ MORE →

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Navigating Family Provision Claims

Ensuring Fairness: Navigating Family Provision Claims

The principle of testamentary freedom suggests that a will maker is not constrained with regards to testamentary wishes and choices. However, chapter 3 of the Succession Act 2006 (NSW) (the Act) enables those who are related to the deceased by blood, close relationship and/or dependence, to initiate legal proceedings, seeking orders for provision or increased provision from the deceased’s estate, for maintenance, education, or advancement in life, which would be different to the deceased’s intended dispositions in their last will. [...]  READ MORE →