Skimping on a Will now may cost a small fortune later

Headshot of Lesley McDonnell - Senior Associate at Everingham Solomons TamworthWhen people seek to make a homemade Will ‘on the cheap’ without professional advice, it can cause additional stress and anxiety for the Willmaker’s family if a dispute arises as to the meaning of the Will with associated costs of litigation to resolve issues depleting the estate. A recent case serves as a timely reminder of why expending time and money on a professionally drawn Will now “is a sound investment” for the future.

The deceased died in 2017. The deceased was survived by her husband and her two children. The deceased left only a modest estate. When she died, the deceased left a homemade Will.… Read More

When is enough ever enough?

Recently we wrote about adult children seeking to contest their parents will. Whilst an adult child may assert “as of right” that a parent is bound to treat children equally in their will, that is not an automatic right as the following case from last year illustrates.

A mature aged adult son, with a reputation for being “a spendthrift of sorts” sought to make a claim against his mother’s estate at the expense of his only sibling despite the fact that his mother by her will, left him a property in excess of $1.2 million coupled with several years’ annuity of $66,000, but he wanted more.… Read More

A Promise is a Promise

If a person makes a promise (“the promisor”) to another that s/he will obtain an interest in the promisor’s land and in reliance upon that promise, the other person then acts to his/her detriment, the law will intervene to prevent the promisor from going back on his/her word when it would be unconscionable for the promisor to do so. A recent NSW Supreme Court case has considered this legal principle known as proprietary estoppel where disgruntled neighbours sued the estate of his deceased neighbour after it was discovered that she reneged on her promise to leave them certain land by her Will.… Read More

Making your Will while under lockdown

COVID-19 has made many people think about their mortality. Making a Will has become a priority for a lot of people in an effort to protect loved ones and as a means by which we can create some certainty as to our last wishes in an otherwise increasingly uncertain world.

Usually, a valid formal Will must be signed by the Willmaker in the presence of two witnesses. This requirement can present an obstacle when you take in account the current social distancing and isolation directives issued by the Government. These directives really do not make the task of signing a Will in the presence of two witnesses who are not family members an easy one.… Read More

Special Disability Trusts

Planning ahead for individuals can be challenging but that task can seem harder for family members of individuals affected by severe disability and will often involve more than making a standard Will and appointing a Power of Attorney or Enduring Guardian.

In 2006, the Government introduced Special Disability Trusts into social security legislation with the aim to encourage the private funding of accommodation and care needs for people with disabilities. A Special Disability Trust allows family members to leave assets in trust for an individual with a ‘severe disability’ which can be used to fund that person’s ongoing care, medical expenses, accommodation, and some discretionary expenditure for that person into the future without adversely affecting their entitlement to a disability support pension.… Read More

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.auRead 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