Contesting a Will

Posted on May 17, 2013 by Kenneth Ti

We’ve previously written about contesting Wills on our blog before, and thought to expand a little more in relation to this topic.

Our society is changing, and more and more families are “blended” in nature – children from a previous marriage, de-facto relationships with previous “baggage”. Because of this, more and more people get pulled into a dispute if a Will isn’t drafted properly, or hasn’t taken the dynamics of a family into account.

Generally speaking, in order to be successful with a will dispute, the disputing party will need to show that they had a certain relationship with the deceased person, and that the Will hasn’t adequately provided for their well being and care. This can include maintenance, education, or other things in life.

The disputing party will also need to show that:

They should have been provided for, or there isn’t adequate provision for them
That they were dependent on the deceased
What is “adequate provision”?

Unfortunately there isn’t any foolproof way to stop a challenge to a Will, but a good Will can take this into account and make it difficult, or expensive, for someone to challenge the Will. This means that it is really important to make sure that your Will is drafted correctly, taking all of these matters into account!

Want to know more about estate and succession planning?

For more information regarding our estates and succession planning services, including will preparation, powers of attorney, enduring guardianship, obtaining probate or letters of administration, and managing deceased estates, please use the quick enquiry form found on this page or call our office on 02 9687 8885. Our experienced estates lawyers look forward to assisting you with your estate and succession planning requirements.

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: challenge, children, contesting, deceased estate, family, family provision act, Financial Planning, succession act, will, Will Drafting, wills, Wills & Probate

Help! I’m not sure if the Power of Attorney is being abused!

Posted on April 26, 2013 by Kenneth Ti

We’ve talked about powers of attorney and enduring powers of attorney in the past on this blog. In summary, these are instruments allowing a person (the attorney) to be given the authority to act on another person (the principal’s) behalf in relation to financial matters.

The attorney must at all times act in the best interests of the principal. Unfortunately however we can never predict how people would behave, and we can never tell if someone is going to abuse the power of attorney given to them. Sometimes it may not be as clear cut as abuse either – perhaps the actions taken were well-intentioned, but nevertheless not in the best interests of the principal.

If the principal is still able to do so, revoking a power of attorney is simple enough, but if the principal no longer has the capacity to make their own decisions or to revoke

the enduring power of attorney, then a third party must bring an application to the Guardianship Tribunal to review the enduring power of attorney and whether it should be revoked.

This also means that the Guardianship Tribunal will have a make a decision about who should take over this job.

At the end of the day however, keeping all of the above in mind – when putting together an enduring power of attorney, it is extremely important that you choose an attorney that you can trust to do the right thing.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: abuse, administration, attorney, buy, enduring, Enduring Power of Attorney, General Power of Attorney, guardianship, legal, person, phang, power of attorney, review, revocation, revoke, solicitor, tribunal, will

What happens if I pass away without a Will?

Posted on March 15, 2013 by Kenneth Ti

Unfortunately if you pass away without a Will, nobody will know how you wanted your assets divided and who you wanted to entrust the job of carrying out your wishes.

The legal terminology for this situation is “intestacy”. Under the Succession Act 2006 (NSW) what happens is that your assets will be distributed according to a pre-determined order. Certain family members, such as your spouse, will have priority, but for the most part the assets will likely be distributed in a manner which you may not have intended.

Passing away while not having a Will can result in your loved ones going through unnecessary hardship and stress. If you are in a de facto or same sex relationship, your partner will also need to convince the court that the two of you indeed have a relationship.

In addition to this, if the court is unable to determine if you have any relatives or cannot locate any of your relatives, they may end up receiving your estate. While this does not happen often, it is still a possibility.

At the end of the day however, your final wishes really should be documented and made clear for the ones you leave behin.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, deceased estate, defacto, dying, family, Financial Planning, intestate, legal, Letters of Administration, passing away, same sex, spouse, state, succession act, will, Will Drafting, Wills & Probate

What happens if I pass away without a Will?

Posted on March 15, 2013 by Kenneth Ti

Unfortunately if you pass away without a Will, nobody will know how you wanted your assets divided and who you wanted to entrust the job of carrying out your wishes.

not have intended.

At the end of the day however, your final wishes really should be documented and made clear for the ones you leave behin.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, buy, defacto, dying, family, intestate, legal, passing away, same sex, spouse, state, succession act, will, Wills & Probate

When should I review my Will?

Posted on February 15, 2013 by Kenneth Ti

Life is hardly ever stagnant. People get married, have kids, buy houses, and sometimes hit the lottery.

Circumstances in your life always change, and because of that, having a Will that doesn’t take into account those changes in your circumstances is hardly ever appropriate.Certainly a Will can be put together to take into account future circumstances, but it can’t possibly cater for everything.

As a general rule of thumb, you should review your Will (or if you don’t have one, you should draft one up!) on any of the following events:

Getting married, or entering into a long term de facto relationship
Moving house, or moving abroad
The birth of children or grandchildren in the family
The death of your spouse, partner or other family member of your family
On your children reaching the age of 18
Divorce or separation
On the sale of a significant asset, such as investment properties or family businesses
A significant change in personal finances, such as winning the Lotto or receiving some money from a Will
On your retirement
The death of your spouse, partner or other member of your family

In addition to this, it’s often a good idea to review your Will every five years or so.

Lots of things can change in five years, after all.

Like we said – if you don’t have a Will – now’s a good time as any to get one sorted out.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: buy, children, death, family, information, kenneth, lawyer, marriage, phang legal, Probate, retire, review, solicitor, ti, will, Wills & Probate

Tying up loose ends after a divorce

Posted on November 28, 2012 by Kenneth Ti

A divorce is never pleasant, and even less so if there was protracted conflict over the course of finalising the divorce. But even after finalising the divorce, there are possibly a few loose ends that you need to tie up – and this includes reviewing and re-drafting your Will.

A Will is not necessarily revoked after your divorce has been processed by the Court. The only parts of the Will which are revoked are those parts that benefit your former spouse. As you can imagine, this can create confusion in relation to which parts are still in effect and which parts have been revoked.This also may create a situation where your estate may be distributed in a manner which you did not anticipate.

In addition to this, there may be other documents that do not revoke themselves after the finalisation of your divorce. These include documents such as your binding death benefit (for your superannuation), a power of attorney, as well as an enduring guardian.

It is therefore critically important that you review all of these matters after finalising your divorce, and making sure that you tie

up all loose ends to ensure that your wishes are properly followed.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: benefit, binding death benefit, death, divorce, drafting, enduring, estate, loose ends, marriage, Probate, review, revoke, supreme court, will, wills, Wills & Probate

Appointing the Public Trustee

Posted on October 24, 2012 by Kenneth Ti

We often receive many enquiries about the advantages and disadvantages of appointing the public trustee as an executor and trustee in Wills. In this article we will explore briefly some of those advantages and disadvantages to help you make a decision when it comes time for you to make your Will.

In NSW, the public trustee is now called the NSW Trustee and Guardian – a merger between the Public Trustee NSW and the Office of the Protective Commissioner (1 July 2009).

The NSW Trustee and Guardian have four main roles, being:

Will Making
Estate Administration
Corporate and Individual Tasks
Powers of Attorney.

The NSW Trustee and Guardian can assist

you with drafting your Will for free so long as they are appointed the executor and trustee in your Will. As they have been around for a long time they are well experienced in drafting Wills. There are also benefits associated with them being your executor and trustee – as they are not related to you or your beneficiaries, they are more likely to be impartial and will follow your Will to the letter.

However, allowing the NSW Trustee and Guardian to draft your Will and appointing them as your executor and trustee does have its disadvantages. The primary disadvantage is that as they are your executor and trustee, they are entitled to be reimbursed for their costs in administrating your estate. Some of these costs will depend on the value of your estate, and are assessed at a percentage of the value of your estate. Naturally, some of these costs may be saved if you appoint a beneficiary or a person related to you as the executor or trustee of your estate.

Having an impartial organisation administrating your estate can also be disadvantage in some situations, as they may not understand your underlying intentions or your family situation when drafting your Will. It is in such situations that having a family member as your executor and trustee, a person who understands you and your particular way of thinking, will certainly be more beneficial than having the NSW Trustee and Guardian administrate your estate.

In summary, the advantages of having the NSW Trustee and Guardian appointed as your executor and trustee are:

Free Will drafting
Experience in managing estates
Independent and impartial

The disadvantages of having the NSW Trustee and Guardian appointed as your executor and trustee are:

Costs based on a percentage of your estate
Not likely to understand your particular family situation

When drafting your Will you should take all these matters into consideration. To find out more about Will drafting please give us a call or use the quick contact form located on this blog.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: administration, beneficiary, costs, drafting, estate, executor, family, free, guardian, independent, lawyers, legal, nsw trustee and guardian, person, phang, Probate, Public Trustee, solicitors, trustee, will, Will Drafting, Wills & Probate

Enduring Power of Attorney – Some Considerations

Posted on September 28, 2012 by Kenneth Ti

We have previously discussed what a Power of Attorney is as well as what an Enduring Power of Attorney can do for you. In summary, a Power of Attorney gives the authority for someone to act on your behalf in matters involving your finances. An Enduring Power of Attorney will allow this person to continue acting even if you are incapacitated.

If you are considering executing an Enduring Power of Attorney you should consider the following:

Do you engage in a risky job, or do you travel a lot?
Are you at an advanced age?
Does your family have a history of diseases that might cause you to be incapacitated?
If you consider that an Enduring Power of Attorney is appropriate, when should it commence from? The day it is executed, or at a time when you are incapacitated?
What are your assets? Do they include land or real property?
If you are incapacitated, does your family require immediate access to assets that are held in your name?
If you are incapacitated, does your family need to sell off your land or real property or personal assets?
Who should be your attorney? Your attorney should be someone trustworthy and someone whom you know will act in your best interests.
What kind of restrictions would be appropriate for your attorney?Can they deal with land or real property? Should they only be limited to act on your behalf on a small range of matters?
Should your attorney also use the funds from your assets to provide for other people, such as your family?

The above points are all matters that you should consider when putting together an Enduring

Power of Attorney – however these are non-exhaustive. If you are looking to put together an Enduring Power of Attorney, give us a call to ask us some further questions on what is involved, or send an e-mail to us using the quote form above.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, attorney, enduring, Enduring Power of Attorney, family, person, power of attorney, sell, will, Wills & Probate

Assets in Foreign Countries

Posted on June 22, 2012 by Kenneth Ti

We now live in a global society and it is certainly not uncommon for individuals to own assets in foreign countries. These assets may be stocks, shares, or real and personal property.

You might own assets in a foreign country. There’s many reasons why you would – you could be an investor looking to maximise your leverage. You could be a migrant and have some residue property interests in your home country. Regardless of your reasons, an important matter to consider is how these may be affected when you pass away.

If you are drafting a Will to

deal with your assets when you pass away, you should take into account the following considerations:

What kind of assets do I have and can they a type of asset that I can dispose of in my Will?
What are the Will-making requirements of the foreign country?
Will the foreign country accept a Will drafted in another country?
Are there any conflicts of laws between the foreign country and Australia?
What can I do to prevent any conflicts of laws?

Fortunately New South Wales is a jurisdiction that recognises foreign Wills as valid so long as the foreign Will is also considered valid in the country of it’s origin. Despite this, that doesn’t change the fact that this is tricky business. If you own assets in a foreign jurisdiction and you intend to draft or update your Will, you must consider these matters carefully.

We can help out with these matters and should you need assistance with these complex questions, please do not hesitate to contact us using the quick contact form on this blog.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, country, drafting, foreign, legal, phang, solicitors, update, will, will-making, wills, Wills & Probate

Superannuation Binding Death Benefit Nomination

Posted on May 25, 2012 by Kenneth Ti

In general, any death benefits paid out by your superannuation is not dealt with by your Will, and in those circumstances the Trustees of your superannuation fund have the discretion to determine who your death benefits are paid out to.

The superannuation law allows for you to direct the Trustees of your superannuation fund to distribute your death benefits to particular individuals after you pass away. This nomination is known as a Binding Death Benefit Nomination and binds the Trustees to your decision.

You can nominate any of your dependants, including any person who was financially dependant on you at the time of your death. You can even nominate that the death benefit is paid into your Estate, which then allows for your Will to deal with your superannuation.

As previously discussed, in the absence of a Binding Death Benefit Nomination your Trustees will make a determination as to who the death benefits should be paid

to. It is not unusual for the Trustees to make a ‘lazy’ determination and nominate that the whole amount is paid to your spouse or your next of kin. This may not be in accordance with your wishes.

A Binding Death Benefit Nomination is valid for three years, at which time it should be renewed. You can change your nomination or revoke your nomination at any time by advising and sending the necessary notices in writing to your superannuation fund.

If you have a self-managed superannuation fund you should check the trust deed that establishes the self-managed superannuation fund in relation to who or how your death benefits are paid when you pass away. If this is not an area which is covered by your SMSF’s trust deed, you should consider amendment of the trust deed.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, benefit, binding death benefit, death, Financial Planning, legal, nomination, person, phang, revoke, smsf, solicitor, spouse, superannuation, trustee, will, Wills & Probate

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Author Archives: Kenneth Ti

Contesting a Will

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Help! I’m not sure if the Power of Attorney is being abused!

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What happens if I pass away without a Will?

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What happens if I pass away without a Will?

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When should I review my Will?

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Tying up loose ends after a divorce

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Appointing the Public Trustee

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Enduring Power of Attorney – Some Considerations

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Assets in Foreign Countries

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Superannuation Binding Death Benefit Nomination

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