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How a Will Lawyer can Assist Non-English Speaking Clients

A recent report prepared by Charles Sturt University and the University of Adelaide found that “…roughly half of adult Australians have a Will but nearly half of those who do don’t feel that their Will is up-to-date or adequately expresses their wishes.”[1]

This is surprising, considering that a Will is probably one of the most important documents that a person will ever sign.  It also highlights the importance of talking to a Will Lawyer.

A Will is defined as a legal document, and a statement of a person’s wishes that are to be executed when they pass away.  The benefit of having a Will is that you get to decide how the assets that you have gained over a lifetime may be distributed.  When preparing a Will, it is important that you speak to a Will Lawyer to ensure that it meets all legal requirements and that your wishes are clearly expressed so as to reduce the chance of there being an argument over what your intentions were (who receives what).
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Estate Planning and Superannuation

ESTATE PLANNING and SUPERANNUATION – The importance of considering Superannuation as part of your overall Estate Planning

Estate Planning Decision: In D17-18/120 (2018) SCTA 24 the Superannuation Complaints Tribunal (“Tribunal”) had to consider an application by the Deceased three minor children for payment of the death benefit and whether the binding death benefit could be overruled.

Facts

  • The Deceased had two adult children with his first wife and three minor children with his second wife.
  • After being diagnosed with a terminal illness the Deceased signed a new Will and at the direction of his solicitor, a Binding Death Benefit Nomination (“BDBN”) ( six months prior to his death.)
  • Both the Will and BNBN were in favour of his two adult children in equal parts.
  • The evidence supplied was that the Deceased had not been in contact with his second wife for many years; however had a strong and close relationship with his adult children.
  • The second wife sought that the death benefit be split equally among all children.  This application was rejected by the Trustee.
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Wills and protecting your children

Not just about the house

Wills are not just about protecting your assets such as your house, investment account, or even your superannuation.  What you might not realise is that your Will provides an opportunity to appoint a Guardian in case something happens to you and your children are under 18 years of age.

Who will care for your children when you are gone?

Appointing a guardian in your Will minimises any conflict that may arise between your family members over a custody dispute. Further, you are provided with peace of mind that your children will be looked after by your appointed Guardian in case the worst were to happen.

Before you appoint a Guardian in your Will, you should consider who is the most appropriate person to take on the role and responsibility. In determining this, factors to take into consideration are physical location, financial security and emotional capacity.

Obtain consent

It is important that you obtain consent for the person you intend to appoint, and that they are aware of this responsibility.  Further, the appointment of a Guardian needs to be reviewed regularly, and your Will updated if there is a change of circumstances and the Guardian is no longer suitable.
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Estate Planning – Extinct Institutions in a Will

Estate Planning – Extinct Institutions and Charitable Purpose

In Hicks v Mater Misericordiae Ltd [2017] QSC 38, the Court had to consider whether a testator’s charitable gift in her will had failed its charitable purpose because of the institution’s closure after her death.

Facts

  • The testator left the residue of her estate to the ‘Medical Superintendent for the time being of the Mater Children’s Hospital in Brisbane for the purchase of medical equipment for the treatment of seriously ill children’
  • However after the testator’s death and before the distribution of her estate, the Mater Children’s Hospital’s public hospital functions were taken over by another children’s hospital

Decision

  • The court then had to consider whether the charitable purpose of this gift had failed because of the closure of the Mater Children’s hospital
  • However, the court established that the evidence allowed the residue of the testator’s estate to be applied as near as possible (cy-pres) to the objects of the defunct institution
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Contested Wills – Death Bed Wills

Capacity and Death Bed Wills
The case of McNamara v Nagel [2017] NSWSC 91 considered the issue of testator capacity in contested wills made upon the individual’s death bed.

Facts:

  • The contested will was made 15 days before the then 87 year old testator’s death
  • There was no evidence that the testator suffered from delusions, dementia or any other cognitive deficit before her death. However, she did have momentary periods of fever and delirium during the time in which the will was executed
  • The new will included significant changes from the testator’s previous will
  • It was argued that there was undue influence on the part of the principal beneficiary, as they were present when then testator gave instructions for the will

Despite there being evidence from the solicitor and another witness and conflicting expert evidence as to the testator’s capacity, the attack on the will failed and the testator was found to have capacity.

If you would like more information or advice in relation to a will dispute, contested wills or testamentary capacity you should consult a member of our Wills and Estate Planning Team.
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Will Disputes and Removal of Executors

Executors Not Easily Removed by Court
The case of Budulica v Budulica [2017] QSC 60 confirmed that that a testator’s choice of an executor will not flippantly be changed by the court when will disputes arise. The court suggested that there usually must be circumstances such as misconduct in administration to justify the removal of an executor. However, it was also suggested that even in light of misconduct in administration the court will consider relevant mitigating factors before exercising its discretion to remove an executor.

Such factors include:

  • An executors willingness to learn from its mistakes; and
  • The stage of administration of the estate

 

If you would like more information or advice in relation to will disputes you should consult a member of our Wills and Estate Planning Team.

Contact Mimi Su on (02) 9635 7966 or mimis@matthewsfolbigg.com.au

Contact Terry Doust (02) 9635 7966 or terryd@matthewsfolbigg.com.au

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Difference between joint tenancy and tenant in common important to consider in estate planning

The difference between a joint tenancy and tenant in common interest can be crucial when preparing your Will and to be considered as part of your overall estate plan.  It is important to understand the difference of the two.

A tenant in common holder can leave his or her interest by Will and a joint tenant cannot. This is because when the first of the joint tenant dies their interest passes to the surviving joint tenant.

For example for most married couples it is common that they have purchased property together as joint tenants.  If via each of their respective Will they are happy to leave that property to the survivor then there is usually no need to consider changing the joint tenancy.

If you are unsure as to how you hold your property or need specific estate planning advice then you should speak to one of our Wills & Estate Planning lawyers.

Questions/Assistance

If you would like more information about this article or if you would like any assistance in other estate planning area please feel free to speak with or email one of our specialist estate planning lawyers on (02) 9635 7966 or info@matthewsfolbigg.com.au
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Immediate review of discretionary trust deeds required in light of NSW duty and land tax changes

Article by Mimi Su, Senior Associate

Introduction
As a result of the 2016 NSW State Budget the NSW Government has introduced two measures aimed at foreign investors purchasing or holding NSW residential land.

Firstly, a surcharge duty of 4% has been effective from 21 June 2016 and will apply to acquisitions of NSW residential land by foreign persons.  This surcharge is payable in additional to any other stamp duty payable on the transaction.

Additionally there is a 0.75% surcharge land tax that applies to foreign persons who are owners of NSW residential land as at 31 December in each calendar year and to commence from the 2017 land tax year.

Specific issue that it creates for discretionary trusts
The definition of who constitutes a “foreign person” for the purposes of these new measures are quite wide and takes the definition in the Foreign Acquisitions and Takeovers Act 1975.

The test applicable to whether a trust will be a foreign person for the purposes of these measures is to determine whether any foreign beneficiary of the trust holds a ‘substantial interest’ in the trust.
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