A Will stipulates how a person’s property is to be distributed after their death.
Considerations:
Who do you want to be your executor, that is the person responsible for carrying out your wishes, obtaining probate (if required); and distributing your estate?
Who do you want to receive a share of your estate (the beneficiaries)?
How do you want to divide your estate (who gets what)?
A Power of Attorney appoints someone to act on your behalf with respect to financial and legal matters.
Considerations:
Who do you trust to be your attorney, how many attorneys do you want to appoint and how do you want to appoint your attorney/s?
Do you want your attorney to be able to use your money for someone else or for your sole benefit?
Do you want to impose any conditions or limitations? eg. your attorney can only act if you are physically or mentally incapacitated.
An Appointment of Enduring Guardian appoints someone to make medical and lifestyle decisions on your behalf once you have lost mental capacity and can no longer make decisions for yourself.
Considerations:
Who do want to appoint as your guardian, how many guardian/s do you want to appoint and how do you want to appoint your guardian/s?
Are you happy for your guardian to decide where you live, what health care you receive, and what personal services you receive, refuse medical treatment, turn off life support and not engage life sustaining measures?
Do you have any specific wishes regarding medical treatment or living arrangements?
At Everingham Solomons, we have the expertise and experience to assist you with making or updating your Will, Power of Attorney and Appointment of Enduring Guardian because Helping You is Our Business.
For a Will to be valid the person making it, the testator, needs to have the requisite capacity…sound mind, memory and understanding.
This means:
they must be able to understand what a Will is (the nature of the document) and what it does (the effect of the document);
they must be able to comprehend the extent of their property (what assets they have and how they are held) and how they wish to dispose of their property (who they want to inherit it);
they must be able to comprehend and appreciate any potential claims that could be made against their estate (eg family provision claim by an adult child excluded from the Will); and
they must not be suffering from any disorder of the mind that would prevent the exercise of their natural faculties thus influencing their Will.
When making a Power of Attorney, the donor needs to be able to understand 4 things:
that their attorney will be able to assume complete authority over their affairs;
that their attorney will, subject to any conditions or limitations imposed, be able to do anything with their property that they themselves could have done;
if creating an Enduring Power of Attorney, that the authority of the attorney will continue if they become mentally incapacitated; and
that if they become mentally incapacitated, the appointment will be irrevocable without approval from the court.
At Everingham Solomons, we have the expertise and experience to assist you with all your Estate Planning needs because Helping You is Our Business.
Increasingly a significant proportion of an individual’s personal wealth can be found in their superannuation. This can be particularly evident when a person dies because the amount invested in their superannuation and receivable by way of death benefit may well exceed the amount of funds in the estate. A recent Queensland case serves as a timely warning for executors and administrators of estates seeking to deal with superannuation.
In 2013 James died without leaving a Will but he was survived by his parents Elizabeth and John. The net assets of James’ estate amounted to $80,000 but the superannuation death benefits exceeded $450,000. There was no binding nomination left by James so the trustees of the superannuation funds were obliged to pay the benefits to the legal personal representative or to James’ dependant or dependants.
Elizabeth made application to the Court to be the administrator of James’ estate. In the application Elizabeth deposed to a high level of conflict between herself and John and said as a result she did not believe that a joint grant to them of Letters of Administration was workable. Elizabeth deposed that she understood that, if she were appointed administrator of her son’s estate, she was required to collect her son’s assets and pay his liabilities as soon as possible and distribute his residuary estate equally between herself and John. Elizabeth further deposed “I propose faithfully to do this”.
Against this background Elizabeth applied for and received $453,748.69 in superannuation benefits personally. John contested this payment which resulted in the matter going before the Court for resolution. In essence Elizabeth argued that she should be entitled to retain the benefit of all of the superannuation paid to her while John argued that Elizabeth should be required to account to the estate for those monies.
The Court determined there was a clear conflict of duty and interest contrary to Elizabeth’s fiduciary duties as administrator of James’ estate. “When the applicant made application to each of the superannuation funds for the moneys to be paid to her personally rather than to the estate, she was preferring her own interests to her duty as legal personal representative…She was in a situation of conflict which she resolved in favour of her own interests… The failure of the applicant to apply for payment to herself as legal personal representative was in breach of her fiduciary duty to act in the best interests of the estate, for which she may be held liable by the court”.
Accordingly Elizabeth was ordered to pay the superannuation monies back to the estate.
At Everingham Solomons we have the expertise and experience to assist you in all aspects of estate administration becauseHelping You is Our Business..
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The starting position in respect of a person’s last Will is that the Will Maker is entitled to dispose of his or her property entirely as he or she thinks fit.
Australia has various state legislations which erode the principle of complete testamentary freedom and permits Courts to redistribute a deceased estate under Family Provision Laws which can be contrary to a person’s Will.
An application must be brought within 12 months of the date of death, unless sufficient cause is shown to satisfy the Court then an application can be brought outside of time.
In NSW an application must be made by someone as defined under the Succession Act. There are six categories of relationship with a deceased that can make a person eligible to bring a claim. These categories are:
A husband or wife of the deceased;
A person in a de facto relationship with the deceased;
A child of the deceased (including natural and adopted children);
A former wife or husband of the deceased;
A person who is dependent of the deceased and who was a grandchild or a member of the deceased household; and
A person with whom the deceased was living in a close personal relationship at the time of death.
It is worth noting that family members such as brothers, sisters and parents are not included in these categories.
If someone makes an application within 12 months and is an eligible person, two questions must be then asked by the Court
“Has the Applicant been left with adequate provision for his or her proper maintenance, education and advancement in life?” and if not
“What provision ought to be made out of the estate of the deceased in favour of the Applicant?”
Certain conduct on behalf of an eligible person can give weight to the deceased’s intention to deliberately leave them out of the Will. This was considered recently by the Court.
“… in respect of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility”.
If a person wishes to make a claim they must do so within 12 months of the deceased passing. Claims of this nature are highly stressful as people are still in a period of mourning and are often in dispute with family members such as siblings. It is important for a solicitor to be sensitive to this and avoid legal proceedings if possible.
At Everingham Solomons, we can assist with advising your rights in relation to such claims, because Helping You is Our Business.
Before Charles Dickens was a successful writer he worked in a legal office as a clerk so it’s not surprising that Lawyers have prominent roles in many of his books.
One of his most famous books is “Bleak House”. A major plot point in the book is a legal case that went for so long that all the money in dispute was spent in legal fees. Dickens usually did not portray lawyers in a favourable light. In this book he described the lawyer character as “always looking at the client, as if making a lingering meal of him with his eyes”.
Dickens’ fictional court case was inspired by a real case that had been going on for about 55 years at the time the book was first published.
The real case arose out of the death of William Jennens in 1798. Mr Jennens had various nicknames but “William the Rich” fitted him very well. When he died at the age of 97 he was regarded as “the richest common in England” leaving an estate of about $750 million in present terms.
Despite his enormous wealth and business acumen, he died without leaving a Will. He was also a bachelor and apparently did not have any children so relatives from near and far made claims upon his estate.
The various court cases associated with his estate went on for 117 years and ultimately only concluded when all the money had been spent on legal fees.
The moral of the tale is that failure to take a prudent legal step – in that case to make a Will – can have enormous ramifications future for you and your family.
Everyone needs a properly drawn Will. Every business owner, and in our area this applies particularly to farmers, needs a properly prepared business succession plan. Failure to plan ahead almost always leads to very significant financial and personal costs in the longer term.
At Everingham Solomons we have the expertise to help you with all your personal and business planning needs because Helping You is Our Business.
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The ability to choose who you leave your property to in your Will has been tempered by legislation that permits eligible persons (as defined by legislation) to apply to the Court for a greater share of a deceased person’s estate where “adequate” provision has not been made for their “proper” maintenance, education and advancement in life”.
A recent NSW decision upheld the wishes of a Willmaker and dismissed the application of two children seeking a greater share of their mother’s estate.
The Willmaker died in 2014 leaving a Will made a little over one month before she died. The Willmaker was survived by her two adult children. Under the Will, the Willmaker left:
her daughter half of her personal effects and $250,000;
her son half of her personal effects and $190,000;
a friend and carer, her household contents (not including personal effects) and the right to use her car for one year from the date of her death; and
the rest of her estate was left to the proprietor of a complementary healing and training association.
The Willmaker died leaving an estate worth $1.1 million. Her children contested the Will.
In the year preceding the Willmaker’s death when she was diagnosed with a terminal illness she had assets in the order of $2.2 to $2.3 million but she had gifted $800,000 to the proprietor of a complementary healing and training association and $60,000 to her son before her death.
The Court found in evidence that the Willmaker had “carefully considered how she should dispose of her estate. She weighed up the competing considerations for her bounty” and she had in any event made provision for her children in her Will albeit her children wanted more. The evidence revealed that the Willmaker had discussed her testamentary wishes with both of her children before she died and asked each of them to respect her wishes and not challenge her Will.
The question for the Court was whether the provision made for the children in the Will was adequate? Both children would doubtless benefit from greater provision than that which has been made for them in the Will but “To remodel the Will because the judge thought that some additional provision would be fairer, would pay no more than lip service, or not even that, to respecting a capable testator’s judgment where it appears that a reasonable judgment has been made. …”.
If the Court had granted the order sought by the children the effect would have been after payment of costs for the estate to go to the children to the exclusion of the other beneficiaries named in the Will thereby leaving the Willmaker’s wishes unfulfilled.
The Court concluded that the children failed to demonstrate that adequate provision had not been made for them by the Will and the application was dismissed.
At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs including making or updating your Will because Helping You is Our Business.
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Mr Yee passed away on 28 May 2013 and left two Wills.
The earlier Will was prepared by a solicitor and was dated 21 February 2013. (‘the earlier Will’). Under the earlier Will some property was left to the Mr Yee’s wife if ‘the marriage has not broken down’.
There was a later Will prepared by Mr Yee without professional assistance. That Will was dated 1 May 2013 (‘the later Will’).
The later Will commenced ‘I hereby revoke all former Wills previously made by me and declare this to be my last Will and testament’. It then went on to make a number of gifts largely consistent with the earlier Will, but, at issue in the proceedings, went on to say:
‘My wife Darunee Jarat is not a wife, even though we legally married, she was here to take all my money and assets…She cheated and lied about herself and why she stayed in Thailand… We found evidence of her still communicating with Vinnie.’
However, not being professionally drafted, the later Will did not deal with all of the estate’s assets. If the later Will was admitted to probate, parts of the estate would be dealt with in intestacy (which is the law that applies where estate property is not dealt with under a Will). The effect of the intestacy would have been to give some of the estate’s property to Mr Yee’s wife.
As this appeared to be what Mr Yee was trying to avoid in drafting the later Will, the Court was left in a quandary to choose between what it thought Mr Yee intended and what the later Will actually said.
Ultimately, the court said that the revocation clause used in the later Will was a ‘formal expression of a layman intended to make a testamentary instrument to prevail over the earlier Will to the extent of any inconsistency.’ The Court said that Mr Yee did not intend to revoke the earlier Will. The later Will was, in effect, an addition to it.
Accordingly, the court admitted to Probate a version of the earlier Will subject to the modifications made by the later Will. The wife did not receive any immediate gift under the estate.
If you require assistance with drafting, interpreting Wills and dealing with estate issues, contact Everingham Solomons because Helping You is Our Business.
Where a capable Testator makes a Will that complies with formal requirements there is a presumption that the Testator knows and approves of the contents of the Will, but that presumption does not apply where the making of the Will is clouded by suspicious circumstances. For example where a Will has been prepared by a beneficiary this will raise suspicion as to whether the Testator knew and approved of its contents. Where suspicious circumstances exist the onus is on the person propounding the Will to prove not only its due execution but that that the Testator who signed the Will also knew and approved of its contents.
In 2013 a 93 year old Testator signed a Will that was prepared for him by his neighbour. The neighbour was appointed the executor of the Will and the net estate was left to the executor neighbour’s wife. The Testator died in November 2013 leaving an estate worth just over $2 million. The Testator was unmarried, had no children and lived alone.
The Will signed by the Testator met with formal requirements and there was no issue regarding capacity. There were however suspicious circumstances surrounding the signing of the Will and consequently the Court would not be satisfied that the document propounded as the Testator’s last Will did express the true will of the Testator, unless the suspicion was dispelled by the executor.
Evidence revealed that the Will prepared by the neighbour did not conform completely with the Testator’s wishes in that the Testator had wanted to leave $20,000 to the Children’s Hospital and $5,000 to a Church. Instead the Will left the whole of the net estate to the neighbour executor’s wife with a non-binding request that she make a gift of two sums to the Church and the Hospital.
In this case the Court was satisfied that the Testator understood that subject to gifts to the Hospital and Church, all of his estate would be given to the executor neighbour’s wife, “The closeness of his relations with his neighbour makes that a perfectly rational gift, particularly in the absence of any relative with a claim on his testamentary bounty”. The fact that this Will represented a departure from past Wills did not of itself mean that the Testator could not have a change of mind “A change of mind is not itself suspicious, particularly as every passing year may have strengthened the bond of friendship” between the Testator and the beneficiary named in his Will.
Whilst the degree of suspicion will vary with the circumstances of each case “It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed” this case was not of the latter kind and the Court was prepared to find there was a rational explanation for the Testator wishing to leave his estate (subject to two small legacies) to the executor neighbour’s wife. The Court utilised its power to rectify the Will to ensure that the gifts to the Hospital and Church were given effect in accordance with the Testator’s wishes.
Much of the turmoil and expense of the above court case could have been avoided if the Testator had only consulted his Solicitor to draw up his new Will. Accumulating assets takes time and for many it can often take a lifetime. It makes sense then that you should take the time to seek professional advice to make a Will that adequately records your wishes as to the ultimate destination of your wealth. At Everingham Solomons we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.
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A Willmaker died in 2014 leaving a Will he had made in 2009. The Willmaker was survived by his adopted son Rodney, 3 adult daughters, 2 grandchildren Kerryn and Roxanna and his ex-wife Rae.
The only asset of the Willmaker at the date of his death were two shares in a company. The most substantial asset of the company consisted of NSW farmland and was valued for probate purposes at $2 million. Located on the Property were two substantial dwellings – one a home in which the Willmaker had lived in for many years and a second dwelling in which Rae had resided in since 1984.
By his will the Willmaker appointed Ornella as his Executrix. Ornella was not related to the Willmaker but had been a great source of support to the Willmaker over many years. The 2009 will contained a number of typographical errors and inconsistent clauses. The main issue for the Court was how to construe the inconsistent clauses of the Will in an effort to try and give effect to the Willmaker’s wishes.
The Will contemplated the sale of real estate with a division of 7/10 of the real estate to one group of family members and a division of the remaining 3/10 to another group of family members on the one hand, but on the other hand specified that the sale of the real estate was not to include the two dwellings because the dwellings were to be gifted to Ornella. The dwellings could not be excised from the real estate without subdivision. However it was not permissible for the real estate to be subdivided. As a result the gifts to the real estate to the two family groups would be stymied.
An application was made to the Court to construe the Will. The Court found on a true construction of the Will, the Property must be sold and the proceeds of sale distributed in designated proportions and divided between family members named in the Will but as the subdivision was not permitted the gifts of the dwellings to Ornella failed.
Whilst the Willmaker’s desire may have been to “keep things simple” by preparing a Will in his own words unfortunately the outcome in this case was anything but simple because the family were forced to make an application to the Court to construe the terms of the Will.
At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs including helping you prepare a Will that suits your individual circumstances because Helping You is Our Business.
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Making a valid Will is one of the most important things a person can do to protect their loved ones. Over time a Will needs to be reviewed and updated so that it properly reflects life changing events. Making a homemade Will can subject an estate to significant delay and expense not to mention stress to the parties involved whilst they await the outcome of a court determination of the Will. A Queensland case provides an insight into one family’s predicament when husband and wife willmakers signed their 2006 joint Will having drawn it up themselves.
The husband willmaker died in 2012 survived by his second wife, Elizabeth. Both the willmakers had been previously married and had children from their previous relationships, but no children from their marriage together. An application was brought before the court to determine a number of issues surrounding the uncertain terms of the Will and the destiny of the family home which contrary to the terms of the Will had been held by the willmakers as joint tenants.
Broadly speaking, the intention behind the joint Will was that the survivor of the husband willmaker and Elizabeth was to be looked after during their lifetime but, on their death, the property of both husband and wife willmakers was to be equally divided so that it went half to the husband willmaker’s children and the other half to Elizabeth’s daughter. The court observed “The drafting of the Will in this case is so poor that I wondered whether or not I could sensibly give any effect to it”.
At the time the 2006 Will was made and at the death of the husband willmaker, the main asset owned by the willmakers was their home, which they held as joint tenants. Normally when property is held as joint tenants upon the death of the first titleholder, the property passes by survivorship to the surviving titleholder who is thereafter free to deal with the property as they see fit. And that’s exactly what Elizabeth did when she sold the home. Here the complicating factor was the existence of a joint Will which sought to limit each willmakers freedom to dispose of assets.
In this case the court found that there was a joint Will where both parties pursuant to an agreement in the form of their Will, made provisions that after the death of either one of them, the survivor was only to have a life interest in the property which they held as joint tenants. That agreement was inconsistent with the continued existence of the joint tenancy. The Court put it back on the family to reach an agreement as to the division of the remaining sale proceeds of the home rather than pursue further litigation which would see none of them gaining any of the benefit that their parents intended for them.
At Everingham Solomons we have the expertise and experience to assist you in making a Will that is in conformity with current law and deals with your particular circumstances Because Helping You is Our Business.
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A Will stipulates how a person’s property is to be distributed after their death.
