Estate Planning

How is your property held and how does it affect your Estate

Real estate can be the greatest asset that a person can have in their estate, whether it be a singular or multiple properties and it is essential that you are aware of the type of ownership that applies to your own property and make estate planning arrangements to ensure that it is dealt with in an appropriate manner according to your wishes.

How the property interacts with a person’s estate is dependent on how the real estate is held or owned.

There are three types of ownership: sole ownership, joint tenants, or tenants in common. [...]  READ MORE →

Coercion and Undue Influence: the impact on will makers

When it comes to elderly will makers, the first question is one of capacity, whether they are able to form a proper intention and completely understand the consequences of their wishes.

The secondary question once it is shown that an elder has capacity, is whether they have had any outside influence as to making their decision, and whether they have been coerced into making that decision through threats or reliance on another.

One of the reasons for this being that older people, while still having capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing. [...]  READ MORE →

The two Ms – Mutual Wills and Mirror Wills

Making a will is not always as straight forward as it seems. To start, there are four different types of wills, being simple wills, mutual wills, testamentary wills, and statutory wills.

The most common is a simple will, and a couple in deciding on making wills, often they mirror each other’s will.

While mutual wills and mirror wills may sound similar, they in fact have very different effects. In order to lessen this confusion, a breakdown of the differences is below.

Mirror Wills

This type of will is very common between spouses or people in long term relationships. [...]  READ MORE →

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 →

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 →

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 →

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 →

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 →