Putting out your hand, without more, is not enough for family provision

The deceased died in 2016 aged 76 years survived by his widow and two adult sons and 6 grandchildren. The deceased made a Will on the day he died leaving his widow the right to reside in their matrimonial home for life. Upon termination of such right, the deceased sought to provide for 3 of his 6 grandchildren, to make a gift of $10,000 to each of his sons, and for the remainder of his estate to pass to his daughter in law who was also named Executor of his Will. The net value of his estate was in the vicinity of $3.8 million.… Read More

Giving The Gift Of Life – Lesley McDonnell

I am often asked by clients who want to donate their organs, if they should include this wish in their Will. Due to the fact that a Will is not read until after a person’s death, there are better options for people to record their wishes to donate their organs.

Firstly, the Australian Organ Donor Register is Australia’s only national register that enables people to record their decision about becoming an organ donor after their death. Registration is easy, voluntary and allows a person to choose which organs and tissues they are willing to donate. There are a number of ways to register including, but not limited to, the following:

Register through your existing online myGov account;

Register using an Online form through https://donatelife.gov.au website;

Download a registration form from the Department of Human Services website at www.humanservices.gov.au; or

Visit a local Department of Human Services Centre and pick up a Donor Register brochure and registration form.… Read More

The importance of a Will and its whereabouts – Lesley McDonnell

LAMA Will is a legal document which sets out who will receive your assets when you die. Taking the time to make a valid Will is an important first step but it is not the end of the story. A Will should be reviewed regularly and particularly when significant life events occur such as marriage, divorce, birth of a child, or if one or more of your beneficiaries die. Equally so, you should always keep your Will in a safe place and let the Executor(s) of your Will know where it can be located. This is because if a Will cannot be found at your death, it can lead to considerable uncertainty, distress and expense for your family as the following case illustrates.… Read More

Inadequate provision for deceased’s children under the rules of intestacy – Lesley McDonnell

LAMThe deceased died in 2016 without leaving a Will. The deceased was survived by his estranged second wife, his ex-wife, and his two children, Thomas and William aged 19 and 16 respectively. The value of the deceased’s distributable estate was just over $430,000. At the time of his death, the deceased and his second wife had been separated for several years with the Court noting “There can be little doubt…the marriage had irretrievably broken down”. As the deceased died intestate (without leaving a Will) the deceased’s estate was distributed “not according to the wishes of the deceased as expressed in a Will, but according to a regime established by statute”.… Read More

Purchase of new residential premises and GST on settlement – Lesley McDonnell

LAMFrom 1 July 2018 the purchaser of ‘new residential premises’ will be required to withhold the GST amount from the purchase price on account of the GST liability of the vendor and pay that amount directly to the Australian Taxation Office (ATO) on or before settlement.  This represents a change to the current regime where a vendor who makes a taxable supply of new residential premises is required to remit the GST to the ATO after lodging their BAS. Under the new regime, the responsibility for payment of the GST to the ATO shifts to the purchaser who will pay the GST liability of the vendor out of the purchase price of the property.… Read More

Forfeiture of inheritance from deceased brother’s estate – Lesley McDonnell

In 2008 the deceased died at the hands of one of her two sons. In 2012, son Brent was tried and convicted before the Supreme Court of Western Australia for the murder of his mother. In 2014 this family was again touched by sadness when Brent’s brother and only other child of the deceased, Adrian passed away.  Adrian died without leaving a Will which meant his estate would be distributed according to the rules of intestacy. In 2016 a grant of letters of administration of Adrian’s estate was made to the Public Trustee (WA).

The Public Trustee (WA) made an application for direction from the Court as to how to distribute the part of Adrian’s estate which was made up of inheritance from his deceased mother’s estate.… Read More

Unsent Text Message upheld as a Will

LAMIncreasingly people live their lives through their mobile phones. In 2016 tragically a man took his own life but he left an unsent text message on his mobile phone recording his last wishes. A friend of the deceased accessed the phone after he died to look through the contact list to determine who should be informed of the deceased’s death. The friend discovered the unsent text message which stated that the deceased’s brother and nephew should “keep all that I have house and superannuation, put my ashes in the back garden”.

 A family feud erupted over the status of the unsent text message left by the deceased.… Read More

With trust comes responsibility – Lesley McDonnell

LAMAn Attorney acting pursuant to a Power of Attorney is required to comply with any and all conditions and limitations of the Power of Attorney instrument. A failure to do so, can result in the Attorney’s actions being declared unauthorised which in turn can lead to unintended consequences as the following case illustrates.

The deceased died in 2008. By her Will, the deceased gifted her interest in some real estate to her daughter. Some years before her death in 2002, the deceased had granted an enduring Power of Attorney to her son. In 2006 the deceased’s son signed paperwork as Power of Attorney for the deceased to sell the parcel of real estate that was the subject of a gift in the deceased’s Will.… Read More

Be Careful What You Promise – Lesley McDonnell

LAMThe deceased married Carol in 1988. They separated in 2008 and were divorced in 2011. On the day of their divorce, the deceased and Carol entered a Contract concerning their financial affairs. The Contract was expressed to be in consideration of each of the deceased and Carol settling disputes arising out of their matrimonial affairs. Under the Contract, the deceased agreed to provide that on his death one half of his interest in a hotel business (now valued at some $4.5 million) would be gifted to their 2 daughters, Diane and Suzanne.

In 2014, 11 days before he died, the deceased made a Will which provided in effect, that his interest in the hotel business would be divided equally between his four daughters, but only at the “Termination Date”.… Read More

Gifting a mess to your family when you die – Lesley McDonnell

LAMIn 2015 the deceased died suddenly at the age of 55 without leaving a Will. The deceased was survived by three siblings. The applicant claimed that at the time of his death, she had been in a continuous 12-year de facto relationship with him. Pursuant to the rules of intestacy, the deceased’s surviving siblings would be entitled to the whole of his estate, unless the applicant could establish that she was the deceased’s de facto spouse.

The Court needed to determine whether the applicant was a “spouse” of the deceased as defined under legislation. The applicant claimed she was in a de facto relationship with the deceased that “has been in existence for a continuous period for at least two years” at his death.… Read More