When does a person have capacity?

Capacity is a fickle thing which Solicitors and other professionals are required to assess before a person can make certain decisions for themselves.
There are many factors which can affect ones decision making capacity; including a number of medical conditions, disability, age, and level of education.

Under Australian Law there is a presumption that an adult has their own decision making capacity.

In addition to this, there are some documents where a specific test for capacity is required. These documents usually require that a person specifically understand the nature and effect of the documents that they are signing.

Generally, this means that a person must be able to:

• Understand the facts and the choices involved with the decision;

• Weigh up the consequences and potential ramifications of the decision;

• Make a decision free from the influence of family and without coercion; and

• Communicate their decision clearly.… 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

Dealing with the Australian Taxation Office (“ATO”) after someone has died?

Initially, you need to establish if the deceased person had a Will, to determine who the executor is, that is who can manage the Estate.

Next, has a grant of probate been obtained by the executor? If no, you will need to provide further information to the ATO if you wish to establish authority to deal with the tax affairs of the deceased person. If probate has been granted, then the executor has authority to notify the ATO of the person’s death and deal with their tax affairs.

Notifying the ATO of the person’s death can be in paper by completing a “Notification of a deceased person” form with a certified copy of the Death Certificate and Will and submitting it by mail.… Read More

Pets – the often forgotten members of your Family

I am writing this article overlooked by various family photos including pictures of my dog Charlie. He is very much a member of my family and I’d like to think that he would be well looked after if I was not able to do that personally.

Australia has a very high rate of pet ownership with over 60% of households containing one or more pets. Dogs are the most popular pet followed closely by cats and thereafter by a wide range of birds, horses and other animals.

Household pets often become very important to their owners but relatively few owners make formal provision for their pets in the event of the owner’s death or incapacity.… 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

Can a trustee delegate his/her duties?

The position of a trustee of a trust is an important position which is governed by State and Commonwealth Legislation and Case Law.
Trustees of a family trust have many duties. Broadly speaking, these include the trustee:
• Acting in good faith;
• Acting personally;
• Acting unanimously where multiple trustees are involved;
• Not being dictated to by others such as beneficiaries;
• Having a duty to consider how distributions should be made and to whom; and
• Having a duty to avoid fettering of any discretion they have.

So can a trustee appoint someone else to perform the trustee’s duties, like an attorney?… 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

What is probate and when do I need it? – Suzanne Hindmarsh

A Grant of Probate is a document issued by the Supreme Court that acknowledges the validity of the deceased’s Will and authorises the Executor/s to administer the Estate.

Whether or not Probate is required depends on the nature and value of the deceased’s assets.

If the deceased held land in their sole name or as tenants in common with another, Probate will be required.

Financial institutions, superannuation funds, aged care facilities and share registries may also require Probate for larger investments before they will allow those assets to be dealt with. Generally, such institutions will require Probate if the amount held with them is greater than $50,000.00.… 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