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Will Disputes

Joint Property and your Will

Most Will Disputes occur from contention over how the Estate was supposed to be divided among the beneficiaries, rather than how the law entitles those to the assets in the Estate.

The primary example being a property purchased in a couple’s names as Joint Tenants. Upon the death of one owner, the law of succession states that the property is automatically passed to the joint owner on title. If the deceased’s Will states that their share of the property is to be passed to their beneficiaries rather than what the law of succession demands, this is how Will Disputes occur. [...]  READ MORE →

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Do you need to update Your Will?

Do you need to update your Will?

Wills can be a reasonably simple to a very complicated document dependent on your needs and intended wishes at the date of your death. While the topic of what occurs after is often sensitive and fraught with emotion, our Estate Planning team is comprised of the professionals required to ensure your Will is updated with consideration to your circumstances and the required attention to detail.

We all know the possibility of getting a home made Will kit is a tempting option as it saves both time and money for you, the client, but the Courts have recognised that in the long run, not having a professionally drafted Will often leads to more Will disputes and therefore a loss of money. [...]  READ MORE →

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Do Millennials have to think of making a Will?

If in doubt, ask a Will lawyer

As a young person, you might think you don’t have sufficient assets to worry about making a Will. Here are some things you might not have considered and should discuss with a Will lawyer:

Inheritance

You may suddenly and unexpectedly inherit money or property from your parents or other family members.

Assets

You may be running your own business and owning business assets, by investing in stock exchange listed shares you may have accumulated a significant share portfolio over the year. It is important to have a Will to state who should receive these assets. [...]  READ MORE →

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Power of Attorneys & their Role in Estate Planning

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 →

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Are my digital assets a part of my estate?

Digital assets form part of your estate and are treated by the court as any other.

We live in an era where our digital footprint has come to reflect more of our identity than we realise. As technology continues to advance, it is important to account for digital assets in the process of estate planning.

What Are Digital Assets in Estate Planning?

Digital assets are often overlooked and can lead to loss of personal information and photographs that were unable to be retained through ‘digital inheritance’. To know whether it can be passed down in a Will, it must be transferable. Examples include[1]: [...]  READ MORE →

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Real Estate in Estate Planning

How is Real Estate dealt with in Estate Planning and Estate Administration?

Real estate, or Real Property is land (with or without improvements) owned by one or more persons and is an asset that must be considered when dealing with a deceased estate. There are three types of real estate ownership: sole ownership, joint tenants, or tenants in common.

Each type of ownership has a different impact on how a deceased estate must be handled and requires different estate planning approaches to ensure that your interest in the property is transferred in the manner you wish.

Sole Ownership
Sole ownership over a parcel of property is exactly how it sounds: a single person owns the entirety of a property. If you wish to gift the property to someone in your will, it is important that estate planning measures are taken to ensure that interest in the property is transferred to the preferred. If the transfer of interest is not specified in your Will, your property may be sold by the Executor and the proceeds form part of your estate. This could cause hardship to your relatives and loved ones if they are depending on receiving the property. [...]  READ MORE →

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Can I include my superannuation in my Will?

Your superannuation can be one of your largest assets and accordingly it is important that your estate plan reflects your wishes on how you want this to be distributed after your death. Unlike your other assets, 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.

This means that you should consider the different options available to you to ensure your superannuation is distributed in accordance with your wishes. It is always advisable to seek advice from an estate planning lawyer on which option will be best suited to your needs. [...]  READ MORE →

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Is my sibling entitled to more inheritance than me?

In some circumstances, there are actions that you might be able to take if you disagree with the distribution of the estate. These are commonly bringing a will dispute or contesting a will through a family provision claim.

An unequal distribution might not have been intended by the testator of the will. A will dispute or challenge can be brought by you, if you have standing. See our previous blog HERE on standing and non-family members disputing a will for more information.

One example of this is Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The deceased, Lady Dorothy Wolseley Macarthur-Onslow, executed a will in 1988 which provided for an equal distribution of her estate between her two children; Lady Hobhouse, the plaintiff, and Mr Macarthur-Onslow, the defendant. In 2002, Lady Macarthur-Onslow was being treated for dementia. In 2004, she executed another will, which was to be the final one before her death in 2013. The effect of the second will was to permit Mr Macarthur-Onslow control to distribute a substantial portion of the property of the deceased, including to himself. The plaintiff initiated a will dispute on the basis of a lack of capacity of her mother to execute the will. [...]  READ MORE →

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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 →

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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 →

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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 →

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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 →