The deceased estate time line – Suzanne Hindmarsh

I’m frequently asked what steps need to be taken when someone dies and how long will it take?

SMHThe usual steps are:-

  • Evidence of death is required. In most cases, this is a death/funeral notice published in the local newspaper.
  • The death certificate is required. This certificate takes about 4 – 6 weeks to be issued by Births Deaths Marriages and provided to the executor/Estate’s solicitor.
  • The funeral account can be paid from the deceased’s bank account if sufficient funds are available.
  • We advise the relevant asset/liability holders of the death and provide certified copies of the death certificate. They provide us with details of the deceased’s accounts and their requirements to release the assets/liabilities of the Estate. This usually takes 3 to 4 weeks and the relevant documents are prepared from this information.
  • If a deceased held land, shares and bank accounts jointly with his/her spouse, the required forms are completed, signed and provided to the relevant registries and bank to transfer these into the surviving joint holder’s name.
  • If a deceased held land, shares or bank accounts over the value of $50,000.00 in their sole name, probate is required to be obtained. Probate is the document granted by the Supreme Court of NSW to enable the executor the right to administer the Will and carry out the wishes of the deceased.
  • Once probate is obtained, letters are forwarded to asset holders with a certified copy of probate, the executor’s completed signed forms seeking closure of the accounts, sale/transfer of shares and land is processed and payment of any outstanding liabilities and taxes are completed. Subject to the assets involved, this can take up to a couple of months or so.
  • After all assets have been transferred/sold as required by the Will and the monies have been received into the Estate’s trust account, the Estate can be distributed in accordance with the Will and finalised.
  • Whilst all matters are different, the usual time frame to administer an Estate is between 6 and 12 months.

If you need assistance with the administration of an Estate, contact us at Everingham Solomons Solicitors because Helping You is Our Business.

Click here for more information on Suzanne Hindmarsh.

Does a Marriage or Divorce Revoke a Will in NSW? – Terry Robinson

TLRbwQuite often during marriage, separation and/or divorce, estate planning is the last thing on your mind. There can however, be a number of serious repercussions for your wealth, when getting married or splitting up.

It is important to know that getting married revokes a person’s existing Will. Therefore if you die after getting married, you may die without the benefit of a Will and your assets may pass to beneficiaries who you would not otherwise have chosen.  This is particularly relevant in second and third marriages.

People should immediately update their Will as soon as possible after marriage or alternatively execute a Will prior to their marriage which is made in contemplation of their marriage to a certain person.

What about divorce and separation?

You must be separated from your spouse for 12 months before you can finalise your divorce. Separation has however, no impact on the validity of your Will which means that any asset given to your former partner would still be distributed to them if you died.

This is not a desirable situation for couples who have recently separated, so it is advisable to update your Will as soon as possible after separating from your partner.

A divorce, once approved by the Family Court, does revoke your previous Will.

Once divorced you need to prepare a fresh Will, otherwise you will die intestate and your assets may be distributed to persons that you would not have otherwise chosen.

In a separation divorce or marriage scenario you also need to consider who you have selected to manage your financial affairs in the event that you cannot. So in these circumstances you may also need to update your power of attorney.

We can assist you at Everingham Solomons with all of your estate planning needs because Helping You is Our Business.

Click here for more information on Terry Robinson

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”. Pursuant to the rules of intestacy, the deceased’s estate passed to his second wife.

In an effort to seek to redress the perceived inadequacies of operation of the rules of intestacy in this case, a family provision claim was made by Thomas and the deceased’s father on behalf of William, for provision to be made for “the proper maintenance, education or advancement in life” of Thomas and William from the deceased’s estate. To determine this issue the Court was required to make “an assessment of the financial position of each of Thomas and William, respectively, the size and nature of the deceased’s estate, the relationship between each and the deceased, as well as the relationship of the deceased’s second wife and the deceased, as a person who has a legitimate claim upon his bounty”.

The Court acknowledged the deceased’s estate passed pursuant to the rules of intestacy to the deceased’s second wife. However the Court noted “bearing in mind the shortness of the marriage before she left the deceased (about 14 months); the fact that there is no evidence of any contribution made by her towards the acquisition, conservation and improvement of the estate of the deceased, or to his welfare; that it is not suggested that she contributed to the welfare of the family of the deceased; that nothing at all is known about her financial resources (including earning capacity) and financial needs or about any physical, intellectual or mental disability from which she might suffer; that she appears to have wished to have a complete break from the deceased, and has maintained that approach by not, apparently, wishing to participate in the proceedings; and despite the numerous efforts to involve her, I am satisfied that the Court should regard her as having virtually no competing claim on the bounty of the deceased…”.

In contrast, “judged by quantum, and looked at through the prism of Thomas’ and William’s financial and material circumstances, respectively, adequate provision for the proper maintenance or advancement in life of each could be seen as not having been made”. Accordingly the Court ordered the estate to pass to Thomas and William.

Much of the difficulty, delay and expense experienced by the parties in this case could have been avoided if the deceased had made a Will leaving his estate to his children. At Everingham Solomons, we have the expertise and experience to assist you to prepare a Will that suits your needs because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Be specific when making your Will – Ken Sorrenson

KJSbwA recent decision of the Western Australian Supreme Court was a timely reminder of the need to be specific when making a Will.

The deceased was a wealthy grazier who died leaving a number of farms and a significant number of Murray Grey cattle.

In his Will he made a provision gifting a farm to a particular person.  The Will went on to say that the gift of land included all farming plant and machinery on that land.

The issue before the Court was whether the cattle that were normally grazed on that land were included in the gift or putting it in another way, whether cattle came within the accepted meaning of “plant and machinery”.

Perhaps not surprisingly, the Court held that the cattle did not come within the gift.

The Court did not find a definition for the phrase “plant and machinery” but found that extending the words to cover livestock would be beyond the natural meaning of the term particularly when, in the particular case, there was no evidence that the deceased intended to provide the beneficiary with a “working farm”.

The lesson is that in providing instructions to your solicitor to prepare your Wills, you need to be very specific about what you require.  For instance, in a farming context, if the intention is to give a beneficiary a working farm you need to consider everything that is required for the operation of the farm. This will generally include machinery, stock and perhaps particular water entitlements. You also need to factor in that quite often these “operating” type assets of a farm may actually be held through a different structure such as a partnership or company. Failure to be specific could easily result in your intentions not being carried into effect.

At Everingham Solomons, we have the expertise and experience to assist you with all your estate planning matters whether involving farms or any other type of business because Helping You is Our Business.

Click here for more information on Ken Sorrenson

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. Pursuant to the rules of intestacy, two persons were entitled to benefit from Adrian’s estate when he died namely Brent and Adrian’s half-brother, Gary. Gary was not a child of Adrian’s deceased mother.

In the deceased mother’s estate, the Court made orders that by reason of Brent having murdered his mother, he forfeited his entitlement to take in intestacy from her estate. But Brent’s entitlement to a share of Adrian’s Estate does not arise directly from Brent’s crime committed in 2008 by the murder of his mother. It arises from Adrian’s death in 2014 and the fact that Adrian died intestate and the effect of the rules of intestacy. There was no suggestion that Brent was responsible for Adrian’s death. However Adrian would not have had an entitlement to the whole of his mother’s estate but for her death at Brent’s hand.

Perhaps mercifully the Court noted “there appears to be no Australian authority directly on point”. “Intuitively it would seem to be a logical extension of the rule of forfeiture to hold that a person in the position of Brent, a convicted murderer, could not benefit directly or indirectly as a consequence of his crime”.

Ultimately the Court decided that the application of the common law forfeiture rule meant that Brent should not receive any part of Adrian’s estate which derived from his late mother’s estate.

In the above cases, both mother and son died without leaving a Will. A carefully drafted Will could have avoided some of the uncertainty associated with the rules of intestacy. At Everingham Solomons, we have the expertise and experience to assist you with all your estate planning matters because Helping You is Our Business.

Click here for more information on Lesley McDonnell

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. The deceased’s brother and nephew asked a Court to rule that the message be treated as the deceased’s final Will. An opposing application was made by the deceased’s widow for a grant of letters of administration declaring that the deceased died leaving no Will. If the widow’s application was successful then the deceased’s estate would be divided between the deceased’s widow and son.

The Court had to determine whether the message was intended by the deceased to operate as his Will to enable the Court to uphold the message as the deceased’s Will. The Court noted “The informal nature of the text does not exclude it from being sufficient to represent the deceased’s testamentary intentions”. Referring to an earlier 2013 case, the Court noted that a DVD left by a deceased person marked with “my will” “although very informal” was found to be a valid Will.

The Court took into account a range of factors in ruling the text message in this case was a valid Will, including that it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”. That the deceased’s mobile phone was with him where he died. That the deceased addressed how he wished to dispose of his property including details as to where cash was to be found, that there was money in the bank and the card pin number, as well as the deceased’s initials with his date of birth and ending the document with the words “my will”.

Whilst ultimately the application to have the text message upheld as a Will was successful, it was not without associated difficulty and delay and uncertainty coupled with considerable legal costs much of which could have been avoided if the deceased had consulted his 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

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. Importantly the Power of Attorney contained a condition or limitation in these terms:

“This Power of Attorney shall only be used upon my treating Medical Practitioner certifying that I am no longer physically or mentally able to sign documents or look after my own affairs.”

The son took no legal advice before acting under the Power of Attorney. He obtained a letter from the deceased’s treating medical practitioner which provided:

“… Over the last twelve months, we have noticed significant deterioration in her mental state and recent testing show [sic] that she is suffering from significant dementia. She has reached the stage which I feel that she may not be capable of looking after her own affairs.” [emphasis added]

Pursuant to legislation, the authority bestowed upon the son to act as Attorney for the deceased pursuant to the Power of Attorney was subject to compliance with the condition or limitation that the Power of Attorney was not to be used unless the deceased’s treating medical practitioner gave a certificate that the deceased was no longer able to sign documents or look after her own affairs. The condition or limitation did not require a medical opinion. It required certification. “The formality associated with that requirement added to the protection of the deceased that the power of attorney would not be used prematurely”. In this case the Court held that the Attorney had no authority to sell the deceased’s real estate because the requirement for a certificate from the deceased’s medical practitioner was not satisfied by the doctor’s letter. Ultimately the Court ordered that the deceased’s gift of her interest in real estate to her daughter in her Will may be traced through the proceeds of sale of the real estate which was ordered to be paid to the daughter in substitution for the specific gift in the deceased’s Will.

This case serves to highlight the importance for persons acting as an Attorney to adhere strictly to the conditions and limitations of the Power of Attorney instrument. At Everingham Solomons, we have the expertise to advise you in relation to the issues involving Power of Attorney, because Helping You is Our Business.

Click here for more information on Lesley McDonnell

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”. The “Termination Date” was defined as being only if and when the deceased’s de facto partner Amanda received $1 million from that business, or she dies. This was contrary to the Contract the deceased made with Carol whereby the deceased agreed to gift half of his interest in the hotel business to Diane and Suzanne on his death and not some later event.

Carol, Diane and Suzanne brought proceedings against the deceased’s estate claiming breach of Contract and other relief. The executors of the deceased’s Will, did admit the existence of the Contract between the deceased and Carol.

Diane and Suzanne were not parties to the Contract between the deceased and Carol, however the Contract was made for their benefit. The Court was satisfied that, “by making the Will, the deceased acted in breach of his promise” under the Contract to gift to each of Diane and Suzanne an interest in the hotel business, “effective immediately on his death, and not on the ‘Termination Date’, likely to be many years later”.

Under law, Equity will enforce a Contract to leave property by Will, “not by restraining or nullifying an inconsistent Will, but by fastening a trust on the deceased’s estate to give effect to the Contract”.

The Court found that the deceased, and the executors well knew that the provisions of the deceased’s Will would contradict and amount to a repudiation of the Contract. Accordingly the Court imposed a constructive trust on the deceased’s estate enabling Carol to enforce the deceased’s promise for the benefit of their 2 daughters and an order was made for an account to be taken of profits of the hotel business since the deceased’s death and one half of those profits paid to Diane and Suzanne.

A legally binding contract to make a Will containing particular provisions can be legally enforceable. If you are in any doubt regarding anything you have said about your Will or how you plan to leave your estate, you should seek professional legal advice. At Everingham Solomons we have the expertise and experience to assist you with all of your estate planning needs because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Claims by adult children in contested Wills – George Hoddle

GRHAs a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.

There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.

This is particularly true when a Court looks at the conduct of the adult children towards the deceased when assessing what weight to give to the deceased’s intention to deliberately leave adult children out of their will.

The starting point of the Act is that the freedom of the person making the Will is the foundation principle and that consideration and proper respect must therefore be afforded to a capable testator’s judgement. A Court cannot simply “ride roughshod over the testator’s intention.”

There is no rule or principle that the deceased has an obligation to make provision for an adult child. Neither is a testator required to look after a child for the rest of the child’s life into retirement.

In circumstances where there is evidence that the child has been callous, hostile or indifferent towards the deceased the Court will not look favourably on the clear intentions of the deceased in favour of adult children.

In cases of small Estates, where there is a surviving widow, it is sometimes deemed appropriate that no provision be left for the adult children at all.

An adult child cannot presume to have an automatic right to a share of the estate of a parent. Nor does an adult child have an automatic right to parity as between his and her siblings, as was found in the recent case of Revell v Revell.

At Everingham Solomons, we have the expertise to assist you with respect to such claims, because Helping You is Our Business.

Click here for more information on George Hoddle.

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. The Court found that the applicant did not qualify in the last five years of the deceased’s life as his de facto partner because she had not been in a de facto relationship with him from 2010. The applicant had quite strong financial dependence upon the deceased during the de facto relationship until 2010 with the Court describing their existence as one of a shared household up until that time, but after that the nature of the deceased’s visitation to her was as a neighbour and former de facto partner and nothing more.

The applicant sought to argue that she was an eligible person entitled to make a claim on the deceased’s estate because she was at a particular time “wholly or partly dependent upon the deceased person” and was at the time of her dependence, or at other times “a member of a household of which the deceased person was a member.” The Court was satisfied that the applicant qualified as an eligible person to make a claim for family provision on the estate on the basis of a six year long relationship. The Court then had to determine whether, having regard to all the circumstances of the case “there are factors which warrant the making of the application”.

The Court found the deceased chose to allow the applicant a place in his life. “He clearly consented to her organising social functions with him and having some degree of a life together”. “She was more than just an ex-partner to him and…for this reason there are factors warranting” the making of provision of $75,000 in the applicant’s favour from the estate. The sum was fixed “partly to take into account the fact that [the applicant] did benefit financially in a substantial way throughout her relationship with the deceased and he was quite generous towards her”.

This case involved significant uncertainty, stress and cost for the parties involved when the deceased passed away and serves to highlight the importance of not leaving legal matters to chance. At Everingham Solomons we have the expertise and experience to assist you in making a Will because Helping You is Our Business.

Click here for more information on Lesley McDonnell