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Terms used in a Will

WILLS –DOES THE TERM “GRANDCHILDREN’ INCLUDE “STEP-GRANDCHILDREN”?

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

THE NEED FOR DISCLOSURE WHEN THERE ARE 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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DOES MARRIAGE AFFECT YOUR WILL?

DOES MARRIAGE INCLUDING SAME-SEX MARRIAGE AFFECT YOUR WILL?

Marriage can result in a Will or parts of it being automatically revoked.

If a person marries after making a Will, it  will be revoked with exceptions including:

·       gifts in the Will from a person to a spouse who they marry are not revoked;
·       an appointment as executor or whom the testator is married to at the time of his or her death is not revoked.

Same-sex marriage in Australia has been allowed since 9 December 2017. The same laws apply in relation to Wills of same-sex couples. A same-sex marriage may make a past Will invalid subject to the exceptions mentioned above.

Considering the difficulties which arise in relation to marriage and Wills, we advise that you make your Will in contemplation of marriage to avoid any issues. Importantly, a Will made in contemplation of a particular marriage is not revoked by that marriage.

If you have been newly married, or you were married before the same-sex laws we can advise you on how to deal with enquiries you may have about the validity of your Will.
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A Will Lawyer’s Advice relating to Capacity to make a Will

A Will Lawyer’s Advice relating to Capacity to make a Will

Can a person without capacity have a will made for them?

If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.

What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?

Consider the following scenario. A person has made a will which leaves all their assets to their spouse. If a few years later this person permanently separates from their spouse and forgets to change their will and some time later they become mentally impaired, they will no longer have the capacity to alter their will. If this person were to die, their previous spouse would receive all their assets. No assets would be given to the person’s children or other important people that the person would have intended to have mentioned in their will if they had the capacity to change it.
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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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COVID-19 WE ARE HERE TO SUPPORT YOU

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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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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