Don’t leave your Will to chance

The deceased died tragically by her own hand in 2021. By law, certain formalities are required to make a valid Will. Firstly, a Will must be in writing. Secondly, a Will must be signed. Thirdly, the person making the Will needs their signature to be witnessed by two other people who also need to sign the Will. If a person dies without a valid Will the intestacy rules under the Succession Act 2006 (NSW) determine how the deceased person’s assets will be distributed. However, a Court may dispense with the formal requirements to make a Will and uphold a document as a Will if the Court is satisfied that the deceased intended the document to form his/her Will (the dispensing power).  The deceased’s sister sought to invoke the Court’s dispensing power to admit to probate what was described as “the online Will”. The estate was less than $1 million.  When she died, the deceased was survived by her parents and two siblings.

“[T]he online Will” consisted of an “online Will questionnaire” completed by the deceased through an online Will writing platform. Due to the questionnaire being completed by the deceased on a public holiday prior to her death, it was not reviewed until the next business day. As a consequence no Will was generated or signed by the deceased before she died. On the same day as completing the questionnaire, the deceased sent an email to her lawyer who had been acting for her in relation to a possible compensation claim which said: “Just letting you know I have drawn up and completed a Will” and she included what she believed to be a link to the online Will, as well as the name and contact details of her nominated executrix being her sister. Additionally the deceased left a text on her mobile phone to her sister, which remained unsent. In part the text stated, “I have emailed my lawyer…with the link to my Will I made this morning. I didn’t have time to wait for it to be signed, but I am hoping it will stick”.

In reviewing the dispensing power, the Court acknowledged the “clear intention of [the law] is to allow the Court to give effect to a will-maker’s intention, despite the fact that a will has not been validly executed…Each case must be decided on its own merits, taking into account all of the circumstances”.  In concluding “the online Will” should be considered a Will because the Court was satisfied on the evidence that the deceased intended it to form her Will, it is important to note that whilst the Court recognised that “digital communication has become an essential part of the social and economic fabric of society” it also noted “this application has been determined on its own facts. But for the statements, in writing, made by the deceased, about the online Will, the Plaintiff’s claim may not have succeeded”.

Whilst ultimately the application was successful, it was not without associated difficulty, delay and uncertainty for the family of the deceased coupled with considerable legal costs much of which could have been avoided if the deceased had consulted her lawyer to make a Will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Digital Assets in Estate Planning

Security of your identity is not only important during your lifetime but also after death.  Having unmanaged online accounts poses a risk to your identity and can be stressful for your loved ones.  With the increasing amount of work and socialising that occurs online, it is prudent to have a plan on how you want your digital assets to be managed after death.

As there is currently no specific law in NSW that applies to a person’s digital assets when they die, online account providers adopt their own varying processes in dealing with a deceased person’s account.  Some providers may be prepared to share the content with the executor, next of kin or beneficiaries whilst others close the account immediately.  The differing requirements and processes of providers can be overwhelming.  It is therefore important to have a Digital Asset Plan to help guide your loved ones.

A Digital Asset Plan usually consists of:

  1. A list of your online accounts.
  2. Your username for each account.
  3. How your passwords can be accessed. For instance, whether they are stored on a “password safe” application or in a further secure location.
  4. Your wishes for your accounts i.e. memorialise, closure, deletion, etc.

It is important you keep this information in a safe and secure place to minimise the risk of identity theft or cybercrime.

Some providers enable you to nominate a legacy contact with them direct.  You can also appoint a person to liaise with those providers to manage those assets on your behalf.  This can be done by including a power in your Power of Attorney to permit your attorney to manage your digital assets during your lifetime in the event of your incapacity.  A power can also be included in your Will to permit your executor to manage your digital assets after your death.

Whilst the legislation in this area is still evolving, at Everingham Solomons we have the expertise and experience to guide you with all your estate planning needs, because Helping You is Our Business.

Click here for more information on Jessica Wadwell

Where there is a Will, there will often be a contest

The deceased died in 2019 survived by his adult son, two adult stepchildren and a former spouse.  By his Will the deceased appointed his son executor and sole beneficiary of his estate. The estate was not a large one at just under $500,000. The deceased’s adult stepson applied to the Court claiming adequate provision for his proper maintenance and advancement in life had not been made by the deceased’s will and he sought $240,000 from the estate.

 

The Court could only make an order for provision in favour of the stepson if it was satisfied the stepson was an eligible person. As an ex-stepchild, he was eligible to make an application as a person who was partly dependent on the deceased and a member of the deceased’s household from 1973 to 1981, except for a short break in 1978 provided he could establish there were factors that warranted the making of his application.

 

In undertaking a review of the evidence, the Court noted “I accept that there would be a range of views within the community as to whether a testator, who had been divorced from their adult stepchild’s parent for nearly 30 years and who had had no contact with that stepchild for over 14 years, would have any moral obligation to provide for them. There is also an absence of evidence of the deceased himself acknowledging any ongoing relationship…for some years. Nevertheless, a relationship existed that was, in my view, close enough to that of a parent/child relationship for a significant period of his life, particularly during his teenage years and young adulthood, such that he [the stepson] could be considered a natural object of testamentary recognition, and I consider that it warrants the making of his application”.

 

Before making an Order for provision out of the deceased’s estate, the Court had to be satisfied, that adequate provision for the stepson’s proper maintenance, education or advancement in life had not been made by the deceased’s will. In undertaking this assessment, the Court took into consideration all the factual circumstances relevant to the application not least of which included the deceased’s testamentary wishes and the interests of the deceased’s son as the sole beneficiary under the deceased’s will and the competing claimant to the stepson’s application.

 

Notwithstanding the history of the relationship between the deceased and the stepson and the stepson’s needs, making an evaluative judgement based on all the circumstances of the case assessed at the date of the hearing, the Court held “it was open for the deceased, acting as a wise and just testator, to provide for” his son to the exclusion of his stepson. Accordingly, no provision from the estate was ordered in favour of the stepson.

 

At Everingham Solomons we have the expertise to assist you with all matters relating to Family Provision Claims, because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Do you know the location of your Trust Deed?

A recent decision of the Victorian Supreme Court has confirmed that the consequences for a Trustee are potentially disastrous if the Trust Deed is mislaid and cannot be located.

A Trustee of a Trust has a duty to keep proper accounts and records of the Trust. This includes all documents which detail the terms of the Trust, including the initial Deed as well as subsequent variations and amendments.

Technology has simplified this process however where Trust Deeds have been set up decades ago before the advent of email and scanning, clients often find themselves searching for copies of old Trust Deeds.

Without a Trust Deed, the Trust may be deemed, void for uncertainty.

In Mantovani v Vanta P/L, it was common ground that the Deed to the Family Trust had been lost. The only document that could be located was a schedule page indicating the date of the Deed, the name of the Trust, the Settlor, the Settled Sum, the Appointor and Beneficiaries.

The Trust held several properties, one of which had been lived in by Giovanni for several decades. Giovanni was not a Director of the Trustee and was not named as a beneficiary of the Trust.

The trustee and the named beneficiaries wish to sell that property. Giovanni bought the matter to the Supreme Court seeking a Declaration that the Trust had failed for uncertainty.

There was no evidence to clarify the contents and terms of the Deed or the nature of the Trust. Was it a Fixed or Discretionary Trust? What was the basis for making trust distributions and what was the vesting procedure?

The Court observed that the Trust had been administered by the Trustee without any knowledge of its terms and such guesswork amounted to a breach of Trust by the trustee.

Further the loss of the Trust Deed rendered the Trustee incapable of determining how it could act in the future, meaning there was no basis upon which the Trust could continue to operate.

Therefore, the Court held that the Trust failed for uncertainty.

Record keeping for Trustees of privately managed trusts, such as Discretionary Trusts, Self Managed Superannuation Funds and Unit Trusts are therefore critical.

If you need assistance with respect to creating, amending, locating or advice regarding your Trust, contact us at Everingham Solomons because Helping You is Our Business.

Click here for more information on Terry Robinson

Estate Planning: What to consider in addition to a Will

Estate planning is more than just preparing a Will. You should also consider who will make decisions during your lifetime should you be unable to make those decisions for yourself. These decisions include your legal and financial affairs, and your health and lifestyle. For this you will need to appoint a Power of Attorney and an Enduring Guardian.

A Power of Attorney is a legal document which deals with legal and financial decision making. An Appointment of Enduring Guardian is a further legal document which deals with health, medical and lifestyle decision making. These documents enable you to appoint trusted family members and/or friends to make decisions for you in the event you lose capacity to make those decisions for yourself in the future.

To prepare both of these documents you must have capacity. It is therefore important you prepare the documents whilst you can understand the nature and effect of the documents.

If you lose capacity and do not have a Power of Attorney and/or Appointment of Enduring Guardian, the Guardianship Division of the NSW Civil and Administrative Tribunal has the authority to determine applications for substitute decision makers.  They can issue orders to appoint a financial manager and/or guardian on your behalf.  Whilst this may result in added stress for your loved ones, it may also result in someone being appointed who you may not have ordinarily appointed yourself.

In determining who you should consider appointing, it is important they are trustworthy and will act in your best interests. In terms of a Power of Attorney, they should be responsible enough to manage your finances. You can appoint more than one person and by doing so you can elect for them to be appointed jointly, or jointly and severally. Jointly means they are only able to make decisions if they all agree about the decision. Jointly and severally means they can make decisions together but can also make decisions independently of each other.

At Everingham Solomons we have the expertise and experience to assist you with all your estate planning needs, because Helping You is Our Business.

Click here for more information on Jessica Wadwell

A lifesaving gift this Christmas

For many people, this time of year means connecting with loved ones from near and far. Coming together in this way provides the opportunity to discuss the lifesaving decision to become an organ donor and to communicate your wishes to those nearest and dearest to you. It is not uncommon for a person to want to record their wish to become an organ donor in their Will. However, because a Will does not operate until a person’s death and is often not read for some time after death, there are better options for people to record their wishes to donate their organs.

The Australian Organ Donor Register (the Donor Register) is the only national register for people aged 16 years or older to record their decision about becoming an organ and tissue donor. There are a number of ways you can register to be an organ donor including, but not limited to, the following:-

Even if you have previously registered your decision elsewhere (for example on your driver’s licence), it is important to register your donation decision on the Donor Register. This is because in NSW, you can no longer register a donation decision via your driver’s licence.

Secondly, people can record their wish for organ and tissue donation in their Appointment of Enduring Guardian. This is not a substitute for registering as an organ donor. An Appointment of Enduring Guardian is a legal document that gives a person the power to say who they want to have authority to make medical and lifestyle decisions for them if through accident, illness or misadventure a person loses the ability to make decisions for themselves.

Finally, it is important that you discuss your wishes with your family as they will have the final say. Family are more likely to follow your wishes if they already know about them. If over time your views or goals change, it is important that you let your family and enduring guardian(s) know.

Presently there are some 1,750 Australians on the waitlist for an organ transplant and a further 12,000 having kidney dialysis who would benefit from a transplant. Only 1 in 3 Australians have joined the Donor Register, even though statistics reveal the majority of Australians would like to donate their organs after they die. This reinforces why it is important to register, and equally important for donors to make your loved ones aware of registration. Taking the time to have these conversations could help save the lives of people currently spending their Christmas waiting for a transplant.

If you need assistance in any estate planning matter, please contact Everingham Solomons, because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Transmission what? Transmission Application and Notice of Death, terminology explained

When you are dealing with land and a deceased Estate, your conveyancer/solicitor will use terminology you are not familiar with.

The first step is ascertaining if the deceased left a Will.  If the deceased left a Will, the executor will need to apply for a Grant of Probate from Supreme Court of NSW. A Grant of Probate is a document issued by the Supreme Court of NSW acknowledging the validity of the deceased’s Will and authorizing the executor to administer the Estate.

If there is no Will, the next of kin of the deceased will need to apply for Letters of Administration.  This is a document issued by the Supreme Court of NSW authorizing the next of kin (known as the “Administrator”) to administer the Estate according to intestacy rules.

Once Probate or Letters of Administration are obtained by the executor/administrator, the land is then able to be dealt with.

Land in NSW can be held by a person three ways. Firstly, as an individual, secondly, jointly with another person, and thirdly, as tenants in common with one or more persons.  All these holdings are dealt with separately on death.

Holding land as an individual or as tenants in common with another person

If the deceased did not leave the land to a beneficiary by way of his/her Will, the land will need to be transmitted to the executor by way of a Transmission Application to Executor and registered with Land Registry Services with fees payable via the PEXA platform. The Transmission Application to Executor will enable the executor to sell the land and once sold, the funds of the Estate will then be distributed to the beneficiaries.

If the deceased left the land to a beneficiary under his/her Will, the property will be transmitted to the beneficiary by way of a Transmission Application to Beneficiary.  Upon the payment of a $50.00 stamp duty fee and registration fees of the Transmission Application to Beneficiary with the Land Registry Services via the PEXA platform, the land will be transmitted into the beneficiary’s name.

Holding the land jointly with another person

If the deceased holds the land jointly with another person, the survivor of the land will become the registered proprietor of the land.  To enable the land to be transferred to the surviving joint tenant, a Notice of Death form with evidence of the Death Certificate of the deceased needs to be registered with the Land Registry Services with fees payable via the PEXA platform.

At Everingham Solomons, we have the expertise to assist you with all legal matters regarding your land, because Helping You is Our Business.

Click here for more information on Suzanne Hindmarsh.

Moral duties of testators to their widows

Headshot of Lesley McDonnell - Senior Associate at Everingham Solomons TamworthThe deceased died in 2018 and was survived by his second wife Nejme and 9 adult children from his first marriage. The deceased died leaving a will made in 2015 whereby the deceased gave Nejme a right of residence for 2 years in the home shared by the deceased and Nejme for the duration of their 17-year marriage (the home), $200,000 to one child, and the rest of the proceeds of sale of the home equally to Nejme and his children. Nejme made an application to the Court for further provision from the deceased’s estate.

Nejme was an eligible person as the deceased’s spouse at the time of his death to make an application to the Court for further provision from the deceased’s estate. The issue the Court had to determine was whether: “…adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made (i.e. Nejme) has not been made by the will of the deceased person …”. In the event the will failed to make adequate provision for Nejme, then the Court was empowered by legislation to make an order for provision “as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”.

The Court noted that, whilst “there was no special rule for widows”, “there is a basic minimum which the community regards as necessary for testators to provide for their spouses where their marriage has been of medium to long duration. Those basic necessities include a secure roof over the remaining spouse’s head and at least a small capital sum”. In this case, the Court held “I think it is plain that now, in 2021, adequate provision for the proper maintenance, education or advancement in life has not been made by the will”. “In short, her marriage of 17 years places Nejme in the position of any other widow. She is entitled to a reasonable measure of security of living quarters and means for the rest of her days”.

When considering what additional provision ought to be made from the deceased’s estate in favour of Nejme, the Court considered a range of orders. Taking into consideration the tensions and opposing interests that existed between Nejme on the one hand and the deceased’s children on the other, the Court favoured an outcome that would permit Nejme and the deceased’s children to go their separate ways. The Court ordered further provision out of the deceased’s estate in favour of Nejme of $500,000.

At Everingham Solomons we have the expertise to assist you with all matters relating to family provision claims, because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Who has the right to request a copy of a will when someone dies?

Headshot of Lesley McDonnell - Senior Associate at Everingham Solomons TamworthIt is a commonly asked question, “When someone dies, who can request a copy of the deceased person’s will?” It is often both a confronting and sensitive question for many people to ask particularly when unlike the movies, there is no obligation on the executor of a will to hold a formal “reading of the will” following the death of the deceased person. In NSW, the answer can be found in section 54 of the Succession Act 2006 (NSW).

Section 54 provides that a person who has possession or control of the will of a deceased person must allow certain people to inspect or be given a copy of the will upon request at their own expense.  In NSW, the following persons may inspect or be given copies of the will upon request being made to the person who has possession or control the will:

(a) any person named or referred to in the will, whether as a beneficiary or not,

(b) any person named or referred to in an earlier will as a beneficiary of the deceased person,

(c) the surviving spouse, de facto partner or issue of the deceased person,

(d) a parent or guardian of the deceased person,

(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,

(f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,

(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,

(h) any person committed with the management of the deceased person‘s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,

(i) any attorney under an enduring power of attorney made by the deceased person.

Section 54 provides a right for eligible persons to inspect the will, while section 54(3) imposes a requirement on the person who has possession or control of a will of a deceased person to produce it to Court if the Court so requires.  Accordingly, a person who has a right to inspect a will needs to bring an application seeking an order for production to the Court if their request to inspect the will of a deceased person is refused.

At Everingham Solomons we have the expertise and experience to assist you with with all matters relating to wills and deceased estates, because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Preparing a Will: What to expect at your appointment

Headshot of Jessica Wadwell - Conveyancer at Everingham Solomons TamworthPreparing a Will may seem daunting, but it is important that you put in place a Will that reflects your wishes, and to reduce the burden on your family and loved ones when you die.

To alleviate some of your stress, this article provides a brief overview of what to expect at your first appointment with us.  The appointment is usually in person as it is important instructions are received from you personally.  This allows us to have a conversation with you to ascertain details to help us prepare your Will, such as:

  • Personal details including identification, contact details and occupation.
  • Whether you have a current Will.
  • Details of family and other relationships i.e. spouse/de facto, children, stepchildren, dependents and former spouses.
  • Particulars of assets both solely and jointly held i.e. real property, bank accounts, shares and motor vehicles.
  • Particulars of liabilities i.e. mortgages and loans.
  • Superannuation information including any binding or non-binding nominations.

We will discuss with you who you would like appointed under your Will and how you would like your assets to be distributed to beneficiaries upon your death, such as:

  • Who you would like to appoint as your executor(s).
  • If you have infant children, who you would like to appoint as guardian(s).
  • Specific gifts to any beneficiaries.
  • Who the residue of your Estate is to be distributed to.
  • Substitute beneficiaries to cover the event of beneficiaries predeceasing you.

Depending upon how you wish your assets to be distributed, further discussions may be required regarding family provision issues.  For instance, people who may be entitled to make a claim on your Estate on the basis that adequate provision has not been made for them under your Will.

We will also discuss other estate planning documents such as Powers of Attorney and Appointments of Enduring Guardian which operate during your lifetime.  These documents permit you to appoint another person to make financial, and medical and lifestyle decisions on your behalf should you be unable to do so.

Once instructions are obtained for the preparation of your Will, our appointment is usually concluded.  A draft Will is then prepared and submitted to you for your approval, and a further appointment is scheduled for reviewing and signing of your Will.

At Everingham Solomons we have the expertise and experience to assist you with all your estate planning needs, because Helping You is Our Business.

Click here for more information on Jessica Wadwell