No Comments

Can a non-family member initiate a Will dispute?

Not everyone can initiate a will dispute. A person intending to bring an action for a will dispute must meet the requirement of standing.

A person is considered to have standing where he or she has an interest in the estate of the deceased. A person who may satisfy the requirement of standing might include a person who was entitled to share in the estate under the valid will preceding the disputed will.

However, even where a person may be unable to dispute a will due to their lack of standing, they may be able to contest a will. [...]  READ MORE →

No Comments

Initiating a Will Dispute due to Mental Capacity

Whether the person who made the will had the requisite mental capacity is one of the grounds for initiating a will dispute.

Mental capacity is called ‘testamentary capacity’ in the context of wills and is required for a person to make a valid will. The test for mental capacity comes from Banks v Goodfellow (1870), which requires a person making a will to:

  • understand the nature of the act and its effects;
  • understand the extent of property of which he or she is disposing;
  • be able to comprehend and appreciate the claims to which he or she ought to give effect and that no disorder of the mind would bring about a disposal of it which would not have been made otherwise.

Should a person fail to meet these requirements at the time the will is executed, they will lack the requisite mental capacity. A will made by a person lacking mental capacity is void. [...]  READ MORE →

No Comments

I don’t have a Will: what are the consequences?

Without creating a Will or contacting an Estate Planning Lawyer to assist in creating a Will, your estate may be inherited by people you may not wish to benefit from your death. According to the Succession Act (2006) The hierarchy for relatives receiving the estate is as follows:

  • Spouse
  • Children of the deceased
  • Parents
  • Brothers and Sisters
  • Grandparents
  • Aunts and Uncles
  • First Cousins

This list is exhaustive and the estate will be provided and divided to the next available relative category. For example, if you don’t have a spouse or children, your estate will be divided amongst your parents, and if no surviving parents, your brothers and sisters equally, and so on. [...]  READ MORE →

No Comments

How to Choose the Right Executor

One of the most significant aspects of effective estate planning is choosing the right Executor. Your Executor is the party responsible for managing the administration of your estate and the distribution of your assets to the beneficiaries in accordance with your Will. As the obligations of your Executor will vary depending on your Will, it is important to discuss with an estate planning lawyer the precise scope of what your Executor will be required to do.

A number of different factors will influence your decision when choosing an Executor and it is important that this decision should be regularly reviewed. Generally, this is something you should reconsider each time your Will is updated. [...]  READ MORE →

No Comments

Are you eligible to contest a Will

Are you eligible to challenge a will?

Contesting a will can be complex, confusing and is subject to strict time constraints. A will lawyer can assist you to understand the process and your eligibility to contest a will in a time of grieving.

A will can be contested before or after there has been authorisation for the executor to manage the estate, known as a grant of probate. It is simpler to contest the validity of the will before the executor starts to administer and distribute the estate, but is still possible after this has started. [...]  READ MORE →

No Comments

De Facto Partner Dies with No Will

What happens when a de facto partner dies with no will?

A person is in a de facto relationship with another person if they have a relationship as a couple living together, and  they are not married to one another or related by family. Our will lawyers can assist you to determine if you, or someone you know, are or were de facto partners. We can also assist you to create or update a will to express your wishes relating to the distribution of your assets.  If your de facto partner has died without a will, you should consult our estate planning lawyers to find out about your entitlements. [...]  READ MORE →

No Comments

How often should I update my Will

How often should I update my Will?

Effective estate planning offers certainty as to how your property and possessions will be distributed after your death. However, it is important to recognise that a Will is largely confined to expressing your wishes at a particular point in time. This means that to make sure your loved ones are effectively protected, your Will needs to be regularly updated. Before your Will is altered it is recommended that you consult an estate planning lawyer to make sure that your wishes are correctly implemented. [...]  READ MORE →

No Comments

The Family Home, Superannuation and Powers of Attorney

Each State has its own legislation regarding Powers of Attorney and Powers of Attorney are a very important part of any estate planning.

Most people are familiar with the concept of a Power of Attorney – essentially a delegation by a person (‘the donor”) to another person (“the donee”) of the right to undertake legal and financial matters on the donor’s behalf.

There are a couple of important underlying practical matters which may not be so apparent.

A Power of Attorney by itself may not be sufficient to allow a donee to undertake the donor’s position as a trustee of a Trust. Generally, trustees cannot delegate their role to another person. [...]  READ MORE →

No Comments

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. [...]  READ MORE →

No Comments

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. [...]  READ MORE →

No Comments

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: [...]  READ MORE →

No Comments

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. [...]  READ MORE →