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Claim against my estate

Who can make a claim against my estate?

Most estates are completed based on the wishes of the deceased and in accordance with their will.

The starting point of the 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 are family members, other persons or their favourite charity.

Claims against estate can come from under the “family provision” parts of succession law, or from equity law regarding promises of bequests that were never honoured. [...]  READ MORE →

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Contesting Estates

Contesting Estates – when they happen and who has a claim?

If a person dies with a valid will in place, his or her estate is usually distributed according to their wishes. This is the norm, and we emphasise that most estates are largely uncontested or have minor issues based on the understanding of the underlying legal principles which are easily resolved.

There are two main types of claims, firstly where someone feels that they should have been provided for and secondly where the will maker’s mental state is questioned.

Who is eligible to make a provision claim?

Generally, these claims occur when there is a valid will, but someone has been or feels as though they have been left out of the will or not been adequately provided for. While this may seem like a broad category, the person making the claim must fall under the definition of an ‘eligible person’. [...]  READ MORE →

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COVID and your Will

COVID and your Will; what can constitute as a Will?

While you may have seen a lawyer about making a will, until you have signed the document, it is considered an informal will. The circumstances that usually lead to someone considering making a will often entail a scare to the person’s health, or someone close to them. This means that there are not many opportunities to attend the lawyer’s office and complete the execution of the document.

One such case is that of In the Estate of Sugars (Deceased) [2021], where the deceased had given instructions to her lawyer and had requested further amendments to the will prior to executing the document. Due to the need to alter the document, the will was never executed prior to the client’s death. The court took into consideration that the client’s time was impacted due to her health and that they had every intention to execute the will when possible. [...]  READ MORE →

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Will Disputes and Testamentary Capacity

Will Disputes and Testamentary Capacity

The term testamentary capacity is relevant in will disputes as it concerns the question of the Will maker’s intention at the time of conveying their wishes. There is a long standing principle in all aspects of law that without capacity, a person is not capable of understanding the consequences of their actions and therefore is unable to instruct a solicitor.

Through the case of Aleta Gooley v Brett Gooley (2021), the court explains that lawyers when receiving instructions from a client making a will have a role to play in determining whether the will maker or testator has capacity. An experienced solicitor is used to dealing with people making wills and is attuned to the red lights that flash when a person who is of suspect capacity comes across their path, and therefore provides valuable evidence of the Testator’s testamentary capacity. [...]  READ MORE →

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Capacity and Estate Planning

Capacity and Estate Planning

We all have someone or know someone who is now classified as an “elder”. The legal age of being an elder is 65 years. While most at this age or beyond have no issue with living as they always have, some need assistance as the complications of old age settle in.

As with all things in life, each person is different and will present at different times with different cognitive or physical disorders as they age. At such a vulnerable time, it is common to rely on others for advice and support. [...]  READ MORE →

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The Need to Consider Superannuation – Recent Case Development

ASFA reports that as at 30 June 2022 superannuation assets in Australia were $3.3 trillion. There is $885 billion in My Super alone.

It is becoming ever more important to give careful consideration to superannuation when considering an Estate plan.

Superannuation is not necessarily part of your Estate

Firstly, it needs to be understood that Superannuation funds are separate trusts.

The proceeds of a deceased member do not necessarily flow through to the person’s estate. The trustee of the superannuation fund has discretion to pay the proceeds directly to a surviving spouse or partner, or surviving dependent children, or a limited class of other close dependents of the member, or the member’s estate. [...]  READ MORE →

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Elder Financial Abuse – Unconscionable Conduct

Elder Financial Abuse: Unconscionable Conduct

Unconscionable conduct is when a person in a relationship takes advantage of the other person’s disadvantage and uses it for their benefit.

The most common example would be when an elder has a friend or a grandchild who helps support them in an emotional or physical way, to the extent that the elder begins to rely on the person. At this point, the friend or grandchild may begin to suggest things to the elder, such as purchasing a house or giving a gift. [...]  READ MORE →

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Elder Financial Abuse: Enduring Power of Attorney

Elder Financial Abuse: Enduring Power of Attorney

As presented in our blog titled Capacity and Estate Planning, an enduring power of attorney document gives your Attorneys (the people you have nominated) control over your assets when you no longer have the mental capacity to make such decisions in your best interest. For example, your Attorney being able to sell property in order to secure a place in an aged care facility.

This document is useful in helping those who look after your wellbeing, by ensuring fewer complications and removing the hurdles they may face with financial institutions and health care providers. [...]  READ MORE →

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Will Disputes

Joint Property and your Will

Most Will Disputes occur from contention over how the Estate was supposed to be divided among the beneficiaries, rather than how the law entitles those to the assets in the Estate.

The primary example being a property purchased in a couple’s names as Joint Tenants. Upon the death of one owner, the law of succession states that the property is automatically passed to the joint owner on title. If the deceased’s Will states that their share of the property is to be passed to their beneficiaries rather than what the law of succession demands, this is how Will Disputes occur. [...]  READ MORE →

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Do you need to update Your Will?

Do you need to update your Will?

Wills can be a reasonably simple to a very complicated document dependent on your needs and intended wishes at the date of your death. While the topic of what occurs after is often sensitive and fraught with emotion, our Estate Planning team is comprised of the professionals required to ensure your Will is updated with consideration to your circumstances and the required attention to detail.

We all know the possibility of getting a home made Will kit is a tempting option as it saves both time and money for you, the client, but the Courts have recognised that in the long run, not having a professionally drafted Will often leads to more Will disputes and therefore a loss of money. [...]  READ MORE →

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Do Millennials have to think of making a Will?

If in doubt, ask a Will lawyer

As a young person, you might think you don’t have sufficient assets to worry about making a Will. Here are some things you might not have considered and should discuss with a Will lawyer:

Inheritance

You may suddenly and unexpectedly inherit money or property from your parents or other family members.

Assets

You may be running your own business and owning business assets, by investing in stock exchange listed shares you may have accumulated a significant share portfolio over the year. It is important to have a Will to state who should receive these assets. [...]  READ MORE →

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Power of Attorneys & their Role in Estate Planning

Power of Attorney refers to the authorisation given to your nominated “attorney” to represent your financial and property decisions. It is important to note that the decisions made by an attorney will be legally binding, to the same effect as decisions made by yourself. It is therefore important to make an informed decision before entrusting this responsibility, and a Will Lawyer can assist to ensure this as part of your estate planning.

The role of a Power of Attorney is only activated once you lose ‘decision-making capacity’ in a legal context, or when you specify you would like it to commence operation. [...]  READ MORE →