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.
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 As you can imagine, this can create confusion in relation to which parts are still in effect and which parts have been revoked.This also may create a situation where your estate may be distributed in a manner which you did not anticipate.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?
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.
There have been many times when clients have asked me to prepare a Will because they’ve got a relationship issue. Often it relates to problems they might have with their parents or children, sometimes it’s with their siblings and even their spouse. A few times, I’ve been asked to prepare a Will to exclude someone’s partner because they were thinking about separating/divorcing, and once this ‘precaution’ was in place, they plan to walk out on their unsuspecting partner.
I appreciate that a Will is important to protect their interests and I’m often the first to stress this to anyone who
asks, but is it the solution to the problems with their relationship? I suggest not. It’s a solution, but might not be the best solution.
A Will is your lasting legacy. It’s what you leave behind, and as much as it has legal meaning there’s also an emotional or social meaning attached. How you express yourself in that Will can also become important – after all, it’s also communication tool. What do you want to say?
In the ‘heat of the moment’ sometimes emotions can overcome better judgment, and if not properly challenged, could result in less than desired outcomes simply because someone thought it could be resolved through writing or changing their Will. Often the motivation for people to ask for a Will at this stage is that ‘someone told them that they could…’ and it’s advice that they’ve obtained in passing, at a social event, or through gossip. Obviously, none of that replaces professional advice.
Life is short, and the opportunity to resolve some of these issues don’t always present themselves. Not taking advantage of the opportunity can have lasting consequences, especially for anyone who is left behind – even though you won’t be around to regret once it’s too late. The bottom line is that while you’re alive you’re in the best position to resolve the issues, don’t wait until you’ve gone and rely on your Will to resolve these issues for you – your Will can do many things, but it can’t do that.
Want to know more about Wills and Estate 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 Wills, and your estate and succession planning requirements.
This website is proudly supported by Phang Legal. This article was posted by Ern Phang, director of Phang Legal.
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.
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?
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.
It is quite common to see “Do It Yourself” Will Kits in Newsagents or Post Offices. They are often inexpensive and contain directions in relation to how they should be filled out.
There is nothing stopping you from drafting your own Will or using one of these Will Kits – that being said, a Will must conform to strict legal requirements and
if it fails those requirements the Courts may decide that it is not a valid Will. If this is the case then there is no Will, and your assets may be distributed in a manner which was not your intention.
A person who is not legally qualified will risk making a mistake, creating further complications or uncertainties for the loved ones they leave behind. It is not unusual for self-drafted Wills to contain ambiguous or unclear phrasing, or using words that may have a different meaning at law. Only a Court can resolve that ambiguity (or declare the Will invalid), and this could come at a substantial cost.
As a Will is an important legal document we recommend that you should have your WIll professionally drafted, to ensure that your wishes are properly recorded, clearly set out, and carried out by the right people. We can help you with all of that – if you have any questions, contact us using the quick enquiry form on this blog.
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.
Estate planning can help avoid complications that can arise following the death of a loved one. With an ageing population in Australia, proper estate planning is critical to ensure that your loved ones are adequately taken care of and have directions as to what to do when you move on.
Estate planning can include the following matters:
Having a Will
Having adequate life Insurance
Making sure your superannuation benefits go to the right people
Having a list of all your assets and liabilities
Having an enduring power of attorney
Having an enduring guardian
Having an Advanced Health Directive
Estate plans should never be considered permanent as considitions, whether financial or personal, change. Your plans should be reviewed perhaps every five years or so, or whenever there has been an important or significant change in your life, such as the acquisition of a significant asset or liability, or the birth, death, or marriage of someone in your family.
review your estate plans – and where possible, help you transfer your assets to the next generation in the most effective way possible. If you have any questions please do not hesitate to contact us using the quick enquiry form on this blog.
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.
is a noticeable increase in enquiries for Wills and estate planning services during the period leading up to the holiday season around Christmas and the New Year. Why is that?
Some clients explain that it’s the thought of traveling and the risks associated with traveling. Others just worry about what will happen to them while they’re away or far from home. Others consider it a time for reflection and family, and realise (shock) that their affairs aren’t in order and it’s time for them to do something about it. They know they should have done it before, but just never got around to it (see our previous poll on why people don’t have a Will).
Whatever the reason may be, it shouldn’t take something like the holiday season or a trip away from home to prompt people into thinking about their Will or their estate planning requirements. The possibility or probability of passing away without a Will is the same if you don’t have a Will regardless of whether you’re staying at home singing Christmas carols, sipping cocktails and relaxing on some tropical beach, or enjoying skiing on a mountain top resort. If you don’t have a Will, you don’t have a Will (see our previous post on intestacy).
When the family comes together to celebrate the holidays, maybe that’s an opportunity to discuss some of the key issues related to your Will or your estate planning requirements – after all, those discussions generally involve or affect those closest to us, right? Is it an appropriate topic of discussion? Maybe not, you’ll need to decide that – but consider what other opportunities will you have throughout the rest of the year to have these conversations. When do most people get together? Maybe it’s weddings, funerals, birthday parties or key festive dates. It’s not easy and it’s probably uncomfortable as well – but that’s life, and should be doing something about it because before you know it another year will have gone by.
What we do know for a fact is that once you’ve done it, you’ve prepared your Will and you’ve stored it away, there is a sense of relief and accomplishment. It’s done! That’s the reward for not procrastinating any more. Sure, you might still have to review your Will from time to time, but that’s another issue for another day. For today, it’s done.
Then you can enjoy the rest of your holiday and the (hopefully) many more to come.
Want to know more about Wills and Estate 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 Wills, and your estate and succession planning requirements.
This website is proudly supported by Phang Legal. This article was posted by Ern Phang, director of Phang Legal.
If you are the parent of a child requiring ongoing care as a result of a disability, planning for their care in the event of your death is a major issue. One of the vehicles that can help manage their financial well being is a Special Disability Trust.This structure allows you to nominate a person (or more than one person) to act as trustee and manage the financial affairs of your child. The trust is allowed to invest the funds for the purpose of paying for the care and accommodation of the principal beneficiary – your child. This may include purchasing and owning a suitable property for them to live in.
There are significant Centrelink concessions available with these arrangements. Firstly, assets up to $563,250 (indexed each year) are exempt from the assets test, and if a property is owned by the trust and used as the beneficiaries home, this is also exempt. In addition to this, Centrelink does not assess any income or distributions from a Special Disability Trust. These concessions may not be not available to beneficiaries of a normal trust (family/discretionary trust, testamentary trust), and may mean you can leave significant levels of assets for the care of your child and they can still be entitled to government assistance.
For parents above Age Pension age, there is also the opportunity to gift funds to a Special Disability Trust. Ordinarily Centrelink would regard any gift above $10,000 in a financial year ($30,000 over a rolling five years) as an attempt to deprive yourself of assets to increase your pension entitlements, and accordingly they would continue to assess these gifts as your assets. In the case of gifts by eligible family members however, up to $500,000 (combined) can be gifted to a Special Disability Trust for the care of your child and Centrelink would no longer count this as your asset. This could potentially make you eligible for Centrelink Benefits, or increase your entitlement to them.
There are a number of conditions that must be met to receive these concessions, and this article just provides a broad overview.
Want to know more?
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 written by David Hazlewood and edited by Kenneth Ti, associate solicitor with Phang Legal.
If you are the parent of a child requiring ongoing care as a result of a disability, planning for their care in the event of your death is a major issue. One of the vehicles that can help manage their financial well being is a Special Disability Trust.This structure allows you to nominate a person (or more than one person) to act as trustee and manage the financial affairs of your child. The trust is allowed to invest the funds for the purpose of paying for the care and accommodation of the principal beneficiary – your child. This may include purchasing and owning a suitable property for them to live in.
There are significant Centrelink concessions available with these arrangements. Firstly, assets up to $563,250 (indexed each year) are exempt from the assets test, and if a property is owned by the trust and used as the beneficiaries home, this is also exempt. In addition to this, Centrelink does not assess any income or distributions from a Special Disability Trust. These concessions may not be not available to beneficiaries of a normal trust (family/discretionary trust, testamentary trust), and may mean you can leave significant levels of assets for the care of your child and they can still be entitled to government assistance.
For parents above Age Pension age, there is also the opportunity to gift funds to a Special Disability Trust. Ordinarily Centrelink would regard any gift above $10,000 in a financial year ($30,000 over a rolling five years) as an attempt to deprive yourself of assets to increase your pension entitlements, and accordingly they would continue to assess these gifts as your assets. In the case of gifts by eligible family members however, up to $500,000 (combined) can be gifted to a Special Disability Trust for the care of your child and Centrelink would no longer count this as your asset. This could potentially make you eligible for Centrelink Benefits, or increase your entitlement to them.
There are a number of conditions that must be met to receive these concessions, and this article just provides a broad overview.
Want to know more?
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 written by David Hazlewood and edited by Kenneth Ti, associate solicitor with Phang Legal.
Everyone aged 18 years and over should have a Will – however the NSW Trustee & Guardian’s statistics show that over 45% of people in New South Wales do not have a Will!
Between 18 September 2011 and 24 September 2011, the NSW Trustee & Guardian will be running Good Will Week, its annual education campaign to encourage adults in New South Wales to have an up-to-date and legal will.
We will also be encouraging our clients to review their existing estate and succession plans and to prepare or update their Wills.
Not having a Will, or having a Will that is invalid or incomplete can result in intestacy and further complications for your family and loved ones that you leave behind in dealing with your estate. Those complications are unnecessary and can be avoided with a few simple steps – starting with having your Will prepared for you by a suitably qualified professional.
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.
