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“Drafting a Will is simple, and cheap…isn’t it?”

When it comes to drafting a will, working out who is going to get what out from your estate is the hard bit.  After you’ve figured that out, the actual drafting of the will is just a straightforward process, and anyone can do it – no need to get a wills lawyer involved.  That’s right, isn’t it?

Well, yes and no.

Most well-written wills follow a simple structure and avoid the use of legal jargon as much as possible.  When it comes to reading a will that was not drafted by a will lawyer and interpreting what it means, a common sense approach is encouraged.  If such a will contains a few technical glitches or inconsistencies, that should not matter provided the intention of the deceased is clear enough. [...]  READ MORE →

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WHY GET A WILL LAWYER TO PREPARE YOUR WILL?

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.  Or if you happen to see one of those TV commercials late at night promoting the benefit of the ‘do it yourself’ simple will kit.  At first glance that might seem like the perfect solution – quick and cheap.

So why on earth would I pay more to get my will drafted at a law firm?

A ‘simple’ will may be all that you require.  However, a will that best addresses your own unique circumstances may not come in a ‘one size fits all’ package.  For example, if [...]  READ MORE →

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Superannuation is an important part of estate planning

The proceeds of superannuation accounts do not automatically fall into the estate of a deceased person and are not automatically dealt with in your Will.

To ensure that superannuation proceeds are properly dealt with, it is important to understand:

  • how superannuation can be dealt with – who can be the beneficiaries;
  • the process surrounding payouts of superannuation proceeds;
  • who might be able to make a claim against superannuation proceeds (which can be in addition to claims against an Estate or disputing a Will);
  • how superannuation payments are administered; and
  • importantly, the use of binding and non-binding death benefit nominations in superannuation and the benefit and pitfalls of nominations.

Nominations

Binding and/or non-binding death nominations for superannuation accounts are often not given enough careful thought. How can you make them effective and ensure the proceeds pass to desired beneficiaries? What happens if a named beneficiary dies? What are the tax issues and practical issues arising in each individual situation? What discretion does a trustee have and/or how can you make sure what you want to happen actually happens? [...]  READ MORE →

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De Facto Partners and Intestacy

De Facto Partners and Intestacy: Understanding De Facto Partner Entitlements

When someone passes away without leaving a Will they are considered to have died intestate.  In such situations the distribution of the deceased person’s estate is determined by statutory rules.  The Succession Act of 2006 (NSW) (the Succession Act) outlines the statutory rules for distribution of an intestate estate.

In determining who is considered as the next of kin entitled to the intestate estate, the Succession Act gives a broad definition to the term ‘spouse’. According to section 105 of the Succession Act, a ‘spouse’ includes someone legally married to the person who has died intestate or was in a domestic partnership with the person who has died intestate, immediately before their death. A domestic partnership also includes a registered relationship or a de facto relationship that has existed continuously for a minimum of two years or has resulted in the birth of a child. [...]  READ MORE →

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Legal Costs Associated with Will Disputes

Legal Costs Associated with Will Disputes

Will disputes occur when there is a disagreement or a perceived slight concerning the deceased and the wishes they had left in their will. Whether it be a son, cousin or distant relative, anyone who was a dependent on the deceased may make a claim against the estate.
The executor in the matter must defend these claims as they hold a duty to ensure that the testator’s last wishes are fulfilled per the will that they had left. The legal costs that are accrued by the executor in defending such claims or by the claimant in bringing these claims to court are often big amounts and paid out of the estate.
To preserve the estate, ensuring that the deceased’s hard-earned money and assets are distributed according to their wishes, the best way is to begin with a clear and well defined will. This reduces the chance of will disputes occurring in the first instance. By ensuring that your wishes are well defined with no ambiguity, there is less possibility of a potential claimant declaring that they have not been considered or provided for.
A professionally made will also removes the potential of claims as to the validity of the will being raised. This brings into dispute whether the executors have the right to deal with the estate’s assets or money. If such a dispute arises, the conflicting parties are required to fund their cases on their own.
In these types of conflicts, the named executors are not entitled to use the estate money to defend such claims of validity of the will, which in turn questions the validity of their appointment as executors. The case of Gooley v Gooley (2020) states that the named executors have no authority to pay their legal costs of the proceedings from estate funds until such an order is made by the court.
Our will lawyers are specialists in drafting and creating estate planning documents, considering factors that may bring capacity into question and experienced in will disputes, which enable us to provide you with advice in relation to any potential claim against your estate and options to avoid such potential claims. [...]  READ MORE →

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Contesting a Will

Contesting a Will

Contesting a will occurs where a person claims they have not received adequate provision under the deceased’s will. The law permits a Will to be altered after the consideration of several factors.
It begins with the drafting of a will. The will maker attempts to balance the competing interest of beneficiaries that they believe should benefit. Our Estate Planning Solicitors will be able to advise as to the moral obligation that may be owed to the various parties in your life. If one of these parties feels as though they deserve more or are entitled to more, they would likely exercise their right under the Family Provisions Act and contest the will to seek adequate provision. [...]  READ MORE →

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WILL DISPUTES IN NSW

WILL DISPUTES IN NSW – FAMILY PROVISION CLAIMS

 When a family member passes and you have been left out of the will or if you think that you have not been adequately provided for in the will, you could consider disputing the will by making a family provision claim. Making a family provision claim would enable an eligible family member to receive a greater share of the deceased’s estate. We are observing an increasing rise of will disputes and contested estates.  

Who is Eligible to make a Family Provision claim?

In New South Wales, section 57 of the Succession Act 2006 allows certain people to make a family provision claim, for provision from a deceased person’s estate. The categories of “eligible persons’’ include: [...]  READ MORE →

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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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Probate Caveats (NSW)

PROBATE CAVEATS (NSW)

If you think the will of a loved one being probated is invalid or there is another will that supersedes the will being probated, then you should consider placing a caveat over the application for a grant.

You could protect your interest in the deceased’s estate, by lodging a caveat to stay the proceedings seeking Probate or Letters of Administration or resealing, until such disputes are resolved.

Grounds for lodging a Probate Caveat

A Probate Caveat could be lodged if you intend to challenge the validity of a will, where there are concerns of the will being forged, the will-maker not having testamentary capacity to make the will or the will being executed under duress. [...]  READ MORE →

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Intestacy – the rules of Succession

Intestacy – the rules of Succession

Intestacy: refers to a situation where somebody has died without leaving a valid will. If you die without a will, a statutory formula is used to determine how your assets are distributed. Consider the following scenario:

Karen died without a will and left her de-facto partner Paul. Karen also left a child Chloe from her previous marriage with Mark (now divorced). According to the statutory formula:

  1. Paul will be entitled to Karen’s personal effects, statutory legacy ($490,000 approximately and CPI adjusted) and one-half of the remainder (if any) of Karen’s estate.
  2. Chloe will be entitled to the remaining one-half of Karen’s estate after Paul’s entitlement has been taken out; and
  3. Mark will not be entitled to receive any of Karen’s estate.

This scenario involving Karen’s estate may not have been at all how Karen would have wanted her estate to be distributed. If only Karen had a valid will at the date of her death! [...]  READ MORE →

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Superannuation, SMSFs and Trustees – How do they interact with your Estate

Superannuation, SMSFs and Trustees – How do they interact with your Estate?

Your superannuation is not usually covered by your Will. The reason for this is that your super is held in trust for you by the Trustee of your super fund. You can make a binding nomination. A valid binding nomination creates a legally binding instruction on the Trustee of your super fund to distribute your super to the beneficiary or beneficiaries that you nominate.

Your binding nomination often needs to be reissued every three years, which also serves as a good reminder to update your Will and to check that your estate plan continues to be structured in an effective way.  [...]  READ MORE →

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Choosing the Right Executor

Choosing the right Executor and being an Executor

Choosing

Choosing an executor is one of the most significant aspects of effective estate planning. An executor is responsible for managing the administration of your estate and the distribution of your assets in accordance with your will. Often the wrong choice of executor in hindsight can lead to or exacerbate will disputes later on.

The obligations of an executor and the factors that need to be considered in choosing an executor will vary based on the wishes of the will maker.

Firstly, one must consider the number of executors they wish to appoint. If choosing multiple executors, keep in mind that if there are any disputes between your executors, it will likely have a detrimental effect on the administration of your estate, by costing the estate time and money. [...]  READ MORE →