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Terms used in a Will


Identifying whether the expressions step children and step-grandchildren are included in the expressions children and grandchildren can cause confusion in Wills .

When all else fails, Courts try to determine expressions in the Will according to the intention of the deceased. Courts may in some cases look into family relationships and their closeness in order to determine the meaning of an expression such as “child”.  In a recent case where there was an intention in the Will for step-grandchildren to be beneficiaries, it was decided that the definition of “grandchild” could be extended to “step-grandchild.”

If there was no clear intention, it will be assumed that nothing was intended other than the ordinary meaning of the word. However it may be that in today’s society, Courts are more amenable to extending “child “to step-child” and so on.

This  will not necessarily apply in all cases.

In the meantime, some points to consider
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Claims against an Estate


A person is entitled to leave his or her estate to whoever they choose. However, there may be circumstances in which a person has been left out of a Will who believes they should have been included.  This is because “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), and grandchildren or members of the household who were dependent on the deceased.

For the Court to be able to determine how to decide the claim, it will look at all facts presented by tperson making the claim. Amongst many other factors, the Court will consider the relationship between the claimant and deceased person, the financial resources of the claimant, the age of the applicant and any provision made for the claimant by the deceased person.

The claimant and all other parties must ensure that they fully disclose information. There must be complete disclosure of assets, liabilities, financial resources and sources of income with documentary evidence. The Courts take a dim view of any lack of honesty.
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Binding Death Nominations (I heard it on the radio)

Will LawyerBinding Death Nominations (I heard it on the radio)

Binding Death Nominations need to be completed carefully if they are to be effective.

It is also important to consider who is being nominated as a beneficiary – otherwise there can be unwelcome tax consequences.

A recent superannuation case decided Binding Death Nominations cannot be disclaimed and the parties involved were caught with the unwelcome tax consequences as the nominated beneficiaries were not death benefit dependents and receipt of the benefit was subject to tax.

The Binding Death Nomination in that case was made by the SMSF member on the basis of “comments heard on a radio station.”

It is best to take proper advice as to who you can and should nominate to benefit under a Binding Death Nomination. In fact you should consider whether a Binding Death Nomination is appropriate at all. It might be better to allow for greater flexibility. In any event, it is not “set and forget”. Regular review is best practice.
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A Will Lawyer’s answers to SMSF questions

A Will Lawyer’s answer to questions on who should be trustee of your SMSF

Can SMSF members be trustees as individuals – are there problems with having individuals as trustees?

A Will lawyer will advise it is quite okay to have individual members as trustees of self-managed superannuation funds. However, there is a danger that record keeping can become muddled and personal assets can be mixed with those of a fund. There can also be a big administrative burden in transferring title of fund assets from one trustee to another, as opposed to companies having the advantage of perpetual existence.

Trustee companies whose sole role is to be trustee of a super fund also attract a lesser annual ASIC fee, so the cost is not great.

SMSF – is it okay to use any company as trustee

A Will Lawyer will advise it is best if a trustee of an SMSF is incorporated specifically for the purpose of being trustee of the SMSF.
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Wills and Estate Planning in a Time of Uncertainty

As the COVID-19 crisis plays out before us with each day bringing new reasons for anxiety and uncertainty, we understand that there is concern in the community surrounding the implications of the outbreak. People are worried and we are trying to help.

The imponderable concern people have now is ‘how long will it take for the virus to be brought under control’. The immediate concern people have is for the health and safety of their family and themselves.

Part of the answer to achieving a good situation for yourself and your family is to make sure that you have estate planning in place.  As is always recommended, estate planning includes financial, personal and health matters, including Power of Attorney and Guardianship

We are here to support you.

We have implemented our plan to minimise the risk of the virus spreading among our team members and from our team members to our clients.
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New legislation – witnessing of documents in the COVID-19 climate

New legislation – witnessing of documents in the COVID-19 climate

NSW Government has passed the Electronics Transactions Amendments (COVID-19) Witnessing of Documents Regulation 2020.

This makes it possible – temporarily – to complete important legal matters by means of an audiovisual link as long as specified declarations and certifications and other procedures are strictly followed. The measure applies for a six month period commencing 22 April 2020 unless extended by Parliament.

It remains important that documents are properly signed and witnessed. The consequences of failing to do so can render the documents ineffective and create uncertainty and additional cost.

Audiovisual links can be used to complete the following documents

  • Wills;
  • Powers of Attorney or Enduring Powers of Attorney;
  • Deeds or Agreements;
  • Enduring Guardianship document;
  • Affidavits; and
  • Statutory Declarations

We can now assist you with these important matters using an audio visual link using applications such as Zoom, Facetime or Skype.

If you wish to obtain further information please contact one of our specialist estate planning lawyers on 9635 7966

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Estate Planning – Residential Aged Care Agreement

Residential Aged Care Agreements

Residential Aged Care Agreements contain mandatory provisions to the requirements of relevant legislation including Retirement Village legislation. Most agreements do not however give “ownership rights” as one has with a house purchase. There are also necessarily provisions dealing with issues that could arise the if there are future health issues making it unsustainable for a person to remain in a particular type of accommodation. These have implications for estate planning

Legislation has been found to restrict the right of village operators the to make some charges of a capital nature..

In the case of Regis Aged Care Pty Ltd v Secretary, Department of Health [2018] FCA117, Regis, a Retirement Village residence agreement included a charge for  “asset replacement”to fund maintenance, reinstatement and building of infrastructure in the retirement village.

The Department of Health contended this was not lawful under the Aged Care Act. Regis sought a declaration from the Court to overcome any uncertainty. The Court held that the charge was not lawful as it did not specifically relate to the cost of providing accommodation to the residents in question.

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Literary Executor

Appointment of a Literary Executor

The appointment of an executor within a Will can be assigned to a specific property or a certain type of property. However, the specified executor must fall within the meaning of ‘executor’ under the Probate and Administration Act 1898(the Act), section 41 to be granted probate which states:

“41 The Court may, if it thinks fit, grant probate to one or more of the executors named in any will, reserving leave to the other or others who have not renounced to come in and apply for probate at some future date.

This is evident in the NSW Supreme Court case The Estate of Nicholas Paul Enright [2017]. Nicholas Enright within his Will appointed two executor’s of his estate and a third ‘Literary Executor’. It was brought to the Court to determine whether the appointment of the third executor fell within the meaning of executor under section 41 of the Act as they weren’t granted probate alongside the other executors, and if so, whether the property was inclusive of “the copyright and other intellectual property in the deceased’s works”. It was noted that the term ‘Literary Executor’ had appeared in other cases.
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