Do You Have Capacity For A Will?

Preparing a Will requires careful thought on the part of the person or persons for whom the Will is being prepared but it also demands great care and skill by the lawyer who is preparing the Will.

With people generally now living much longer and being prone to deteriorating mental health careful consideration must be given to whether or not the person for whom the Will is being prepared has the required level of mental capacity to make a legally valid Will (referred to as testamentary capacity). This is not only an increasingly important issue for lawyers, but it is also an equally important issue for accountants, financial planners, family doctors and other advisors.   

One must appreciate that the assessment of a person’s testamentary capacity is a legal test rather than a medical test. The opinion of a treating or reviewing medical practitioner is certainly relevant, but it is not determinative of itself.  An assessment of a person’s testamentary capacity may include obtaining an appropriate doctor’s opinion, but it very likely will also require evidence from other sources including people who know or have known the person concerned and who can inform the Court (if necessary) about  the day to day activities and responses of the person concerned.

Not infrequently, testamentary capacity can be a borderline issue. This may leave the person for whom a Will is being prepared or has been prepared vulnerable to those who may seek to exert influence over the Will maker and what they put into their Will.  Where the Court is called upon to determine a person’s testamentary capacity it will try and look at the full picture (sometimes with the benefit of hindsight) which often involves hearing from a wide range of witnesses.

For family members, as well as financial, medical or other advisors, this means making sure that at the time that the Will is executed there are comprehensive written records of the Will maker’s testamentary capacity – the Will maker should be engaged in conversation and if possible detailed written notes kept of responses to questions and the reactions to events that are happening around them at the time. It may also be valuable to take video of the person concerned at or about the time that they execute their Will to support the conclusion that they then have the necessary testamentary capacity.

These simple precautions can assist to prevent a Will later being declared invalid by the Court because the Court is not positively satisfied that the person making the Will had the required level of testamentary capacity.

The consequence of a Will being declared invalid by the Court can be significant and expensive. This may be especially so where there is a sizable Estate at hand and/or where there are potential vulnerable beneficiaries who may miss out on receiving a benefit from the Estate of the deceased.  The intended testamentary wishes of the person making the Will may be lost and their Estate distribute in a manner which is far less satisfactory and possibly even contrary to their expressed testamentary wishes.

Therefore, anyone who provides professional advice to others must carefully consider the mental capacity of the person being advised to properly understand the advice provided, appreciate the consequences of following that advice and be capable of providing coherent and reliable instructions to the advisor. In the case of a person who is making a Will, it is the required level of testamentary capacity of that person that is crucial. It is, of course, equally  important to ensure that the Will together with all other estate planning documents are regularly reviewed and updated so as to ensure that the person’s Estate will be distributed in accordance with their current testamentary wishes.

PLEASE CONTACT

For more information or to discuss any particular concerns contact Les Buchbinder at [email protected].

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Superannuation – Is Your Will Enough?

Superannuation has become a major asset for an increasing number of Australians since the introduction of compulsory payments by employers since 1992 by the Australian Government.

Contrary to popular belief, superannuation is not an estate asset and it does not automatically form part of your estate upon your death. Rather, payment of superannuation upon death is a matter determined by the trustee of the superannuation fund in accordance with the governing rules of the respective fund and relevant law.

Should your fund allow them (there are a few commercial funds that don’t), a binding death benefit nomination (BDBN) is a way in which you can, during your lifetime, override the trustee’s discretion.

A BDBN is effectively a written notice given by a member to the trustee of their fund which directs the trustee to pay the member’s death benefit, often comprising both superannuation and associated death benefits such as life insurance, in accordance with their wishes outlined in the BDBN.

The trustee of the fund is required to follow the instructions outlined in the BDBN, provided that it has been correctly prepared and executed.  A valid BDBN remains in effect for three years from the date it is signed, last amended and confirmed. In some instances, a non-lapsing binding death benefit may also be available and appropriate.

For members that have not made a BDBN with their fund, the trustee of the fund has the authority and discretion to decide whether to pay any benefit payable on your death to one or more of your dependants, or to your estate.

Dependants in this context include a spouse, children of any age, any person financially dependent on the member, any person in an interdependency relationship with the member, and the member’s legal personal representative.

There are a number of advantages to making a BDBN. These include the peace of mind and certainty as to who will receive your death benefit once you die and the ease and speed at which a death benefit can be paid.

Unlike those assets that form part of your estate, a Grant of Probate or Grant of Letters of Administration is not required to be obtained in order for a beneficiary to access your superannuation death benefit. Similarly, a BDBN can protect your superannuation and associated death benefits from any claims made against your estate.

For further advice or guidance on superannuation and the implications for an estate, executor or beneficiary, please contact Alana Stallard on [email protected]  or (08) 9325 9644.

PLEASE CONTACT

Contact Alana Stallard at [email protected] if you wish to discuss this matter or your estate planning objectives further.

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Lacking mental capacity to make a Will – you may get Court!

Arguably one of the most controversial and challenging of the formal legal requirements of a valid Will is whether or not the person making the Will has sufficient testamentary capacity at such time that they make their Will.  A Will is not valid unless the person making it has testamentary capacity. That is, they must:

(a) understand the nature of the act and its effects;

(b) understand the extent of the property of which he or she is disposing; and

(c) be able to comprehend and appreciate the claims on his or her Estate to which he or she ought to give effect.

However, what happens if a person has no Will and no longer has the required testamentary capacity?

One option of course is that no steps are taken. In this case, when that person dies his or her Estate will be distributed in accordance with a prescribed formula set out in the Administration Act (“an Intestacy”). But, what if dividing this person’s Estate or an Intestacy does not adequately provide for certain family members or non-family persons or organisations?  Further, what if the person already has a Will in place but their personal and/or financial circumstances have significantly changed since the time when the earlier Will was made and it is now no longer relevant or appropriate?

This issue arises more and more frequently as our population ages, people’s financial circumstances become more complex, and the family unit continues to disappear.

In this situation, consideration can be given to whether an application should be made to the Court for what is called a Statutory Will.  This is a Will which is made by the Court for the person concerned.   This option first became available in Western Australia in 2008.

Upon such an application being made by any person, the Court, pursuant to section 40(1) of the Wills Act 1970 (WA) has the power to make, alter, or revoke a Will of a person who lacks testamentary capacity provided that the person concerned:

(a) lacks testamentary capacity;

(b) is alive; and

(c) is over 18 years of age.

The power for the Court to make a Statutory Will enables the Court to ensure that there is a valid Will in place which:

  1.  Gives effect to the previously stated or more obvious wishes of a person lacking testamentary capacity;
  2.  Avoids a full or partial intestacy;
  3.  Avoids a future dispute as to the adequacy of provision or interpretation of an existing testamentary document;
  4.  May allow for appropriate structuring to be put in place, such as testamentary trusts, which can have significant benefits for beneficiaries of the Estate; and
  5.  Deals with changes in circumstances that may have occurred since a last Will was made by the Will maker.

However, in the last 10 years there is only one reported case in Western Australia which has addressed this matter.  In that instance the Court declined to make the Will as sought. The lack of applications to the Court for a Statutory Will may reflect a lack of familiarity with such applications, or that the cost and complexity of these Applications can be prohibitive in many instances. Nevertheless, Statutory Wills can be a useful estate planning tool that should, at the very least, be considered in the appropriate circumstances.

Please contact Alana Stallard at [email protected] if you wish to discuss this matter or your estate planning objectives further.

PLEASE CONTACT

Contact Alana Stallard at [email protected] if you wish to discuss this matter or your estate planning objectives further.

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Some Super Changes

Here we go again….!

Several significant changes to the superannuation rules became effective from 1 July 2017.Do you really need to know about them?  Yes, you do!

Not only will the changes impact on your plans for your superannuation and retirement, but they will very likely also impact on your estate planning objectives and arrangements.

Ok, So What Has Changed?

In summary, the new rules after 30 June 2017 in relation to pensions include the following:

1. A person cannot start a pension with an account balance supporting a pension of over $1.6m (or continue such a pension after 30 June 2017).

2. This limit is called a person’s “transfer balance cap”.

3. When a person starts a pension after 30 June 2017, they will have a “transfer balance account”. This will track key events in relation to the person’s pension, to see if the person exceeds their transfer balance cap (either on starting the pension or at a date on starting an additional pension).

4. If someone exceeds their transfer balance cap, they will need to take action to rectify the problem (that is, by commuting part of their pension).

5. If the person does not take action, the Commissioner of Taxation can force the fund to rectify the problem (by issuing a “commutation authority”).

6. The rectification action that can be taken will involve commuting some or all of the pension to a lump sum.

7. Except in relation to pensions resulting from the death of a member, such a commutation can generally be retained in the superannuation system.

What Does This Mean For Me?

What this means in practical terms is that where the death benefit exceeds the recipient’s transfer balance cap (currently set at $1.6 m), then any excess must be cashed out as a lump sum. This will impact in particular on those wishing to keep benefits in superannuation by reverting or paying a pension to their dependants upon their death.

How Will This Affect My Estate Planning Decisions?

There are a number of ways in which these changes may impact on estate planning decisions. For example:

1. It will be necessary to review and possibly update death benefit nominations and Wills;

2. It may be necessary to review and update Self Managed Superannuation Fund Deeds to bring them up to date with the new legislation and to allow estate planning objectives to be achieved. For example, often older Deeds do not allow for non lapsing Binding Death Benefit Nominations;

3. Where members of a superannuation fund have balances exceeding the transfer balance cap, they may need to consider setting up a  Self Managed Superannuation Fund for their pension interest and retaining their remaining accumulation interest in their existing fund. However, care will need to be taken as this could trigger tax issues and accordingly appropriate tax advice should be sought to determine the tax implications of each strategy. A good estate planning strategy can sometimes be a disaster from a tax planning perspective; and

4. Where a death benefit is required to be paid as a lump sum this may force the sale of non-liquid assets where there are insufficient liquid assets to satisfy the lump sum. In such a situation a strategy needs to be developed to prevent this occurring.

These are examples of some of the impacts the new superannuation rules will have on estate planning strategies, but in individual circumstances there are likely to be other impacts as well.

Conclusion

Estate planning is not a set-and-forget process. Rather it is an ongoing evolving process, which must necessarily respond to changes in individual personal, financial and other circumstances, as well as to changes in the law.

The changes to the superannuation rules will have far reaching effects for those who hold, or who anticipate holding, significant funds in superannuation. Therefore, for those who are, or might soon be, affected by these changes it becomes critically important to respond and carefully review your estate planning arrangements and strategies. This review may necessarily extend to reviewing business structures and business succession arrangements.

Those who choose to ignore the new superannuation rules and/or who choose not to regularly review their estate planning and business succession arrangements do so at their own peril. They also do so at the peril of their families and loved ones with potentially significant detrimental financial consequences.

PLEASE CONTACT

For more information or to discuss any particular concerns contact Les Buchbinder at [email protected].

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Owning Properties in Different Countries – Heirs and Places

In today’s globalised world, an increasing number of people own real estate in more than one country at any one time.

As a result, there has been an increase in the number of people who have both an Australian Will and a Will in a foreign country to dispose of real estate owned by them. The intention (subject to the manner in which the Wills are drafted) is usually for the foreign Will to dispose of real estate in that foreign country and for the Australian Will to dispose of all other assets of that person.

However, if you first make an Australian Will that only deals with your assets in Australia, and later make a second foreign Will that states that it revokes all previous Wills and deals solely with your real estate in that other country, what is the status of your Australian Will? Has your Australian Will been revoked by the later foreign Will?

This interesting predicament has been considered by the Australian Courts, which have set out principles to reduce the uncertainty that this creates and have determined that the question of whether a later Will revokes an earlier Will ultimately depends on the intention of the Will-maker: did he or she intend to revoke the earlier Will?

In Australia, in so far as real estate is concerned, such issues are generally referred to the law of the place where that real estate is situated (the legal principle of ‘lex situs’).

It has also been recognised since the 19th century that a general revocation clause in a Will (e.g., ‘I hereby revoke all Wills heretofore made by me and declare this to be my last Will’) is not sufficient of itself to revoke a prior Will if the Court is satisfied that the Will-maker did not intend by the later Will to revoke the earlier Will.

In determining the intention of the Will-maker, the Courts will look at a variety of factors, including:

  • whether the Australian Will deals only with your Australian estate;
  • whether the foreign Will deals only with your real estate in the foreign country;
  • whether the later Will is sufficient by its terms to cause a revocation of the earlier Will (which is a question of interpretation of the foreign Will by the Courts);
  • whether the foreign Will was ever intended to affect the Australian Will (which is to be determined as a matter of evidence according to Australian probate law);
  • whether the foreign Will was made in the language of that country and not in English; and
  • the terms of both Wills and the circumstances of their execution and signing.

The practical significance of this is that, if you own assets in Australia and also own foreign real estate, it is imperative that you obtain competent estate planning advice so as to avoid the risk that, at a later time, either your Australian or your foreign Will is deemed to have been revoked, when your intention and estate planning objectives may be clearly otherwise.

PLEASE CONTACT

Contact us at bbv@bbvlegal.com.au if you wish to discuss this matter or your estate planning objectives further.

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The Importance of a Sole Director Having a Will

Companies that have a person registered as both the sole director and sole shareholder could be taking a big risk if the director dies without leaving a Will.

The company could have difficulty continuing to operate or it could be wound up.

Under the Corporations Act, if a single director of a company dies, the executor or personal representative appointed to administer the deceased’s estate may appoint a new director to the company having obtained a grant of Probate from the Supreme Court. The transitional director has all the powers, rights and duties of the deceased director and can keep the company functioning until shares are transferred to beneficiaries who may then appoint new directors. But if there is no valid will, a relative or other person would have to apply to the Supreme Court for letters of administration to manage the estate. This generally takes longer than an application for a grant of Probate.

While an option would be for the Public Trustee to be appointed to administer the estate, this procedure could take several months. A trading company in this situation would be unable to proceed with financial arrangements, might lose valuable work or incur penalties because it is unable to complete contracts.

It is therefore vitally important that a sole director who is also the sole shareholder of a company makes a valid Will. The Will can even nominate who the testator wishes his or her executor to appoint as a replacement director.

PLEASE CONTACT

Contact David Vilensky at [email protected] if you wish to discuss this matter or your estate planning objectives further.

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Choose Now Whilst You Can! – Your Future Decision Makers

Most of us are aware that a Will is a document that captures our wishes for the disposition of our assets (amongst other matters) once we die. It is not common knowledge, however, that there are also documents that one can execute in order to preserve our wishes for when we are still alive.

These documents are called an Enduring Power of Attorney, Enduring Power of Guardianship and Advanced Health Directive (sometimes called a Living Will).

For anyone who is addressing their estate planning objectives (and that should be all of us) it is important to consider the protection of your person and estate during your lifetime, as well as considering what happens to your assets once you die. To only execute a Will, and not consider what measures you take to protect the estate during your lifetime, is only addressing part of your estate plan.

Enduring Power of Attorney

An Enduring Power of Attorney allows you to appoint a person that you trust implicitly (usually a spouse or a child) to have authority to deal with your financial affairs.

This means that your ‘attorney’ (the person you appoint) has the authority to deal with your assets as if they were standing in your shoes. Your attorney may access your bank accounts, investments and (if you lodge the document with Landgate) deal with your real estate, if you ever lost the capacity to do so yourself.

Although this may not seem rational in reality, provided that your attorney is a reliable person to be given such a power, it is an important document that may assist you in times of emergency. If you were ever in a position where you could not make decisions for yourself, and you have outstanding financial obligations that need to be addressed, your attorney may step in and address those requirements on your behalf.

An Enduring Power of Attorney will provide you peace of mind in knowing that in a time of crisis, your financial obligations are being attended to by someone you trust and in whom we you have confidence.

Enduring Power of Guardianship

This document is similar to an Enduring Power of Attorney, however it relates to health and lifestyle decisions only. When you have capacity, you are able to make decisions relating to your own health and treatment and lifestyle decisions. For example, where you live, what medical treatment you undertake or what entertainment you will enjoy, etc.

Should you become incapacitated, you will have selected the person whom you trust to make these decisions on your behalf.

Although you may think that this document is unnecessary and when the time comes your family will be able to make those decisions for you, it is important to remember that decisions of these nature are particularly personal and you must consider reasonably whether it would be prudent to appoint particular people to preserve your wishes regarding your health and lifestyle.

Advance Health Directive

An Advance Health Directive is a document in which you set out, in advance, what treatment decisions you choose in certain circumstances where you cannot communicate those decisions at the time. The types of treatment decisions set out in these documents relate to the situation where you may be on life support or in a vegetative state. You may set out that you consent to, or do not consent to, treatments such as resuscitation, artificial feeding, blood transfusion, and similar treatments.

Your treatment decisions in your Advanced Health Directive must be followed by a medical practitioner and you therefore control the way you are treated in the event that you require life sustaining measures to be kept alive.

PLEASE CONTACT

Contact us at bbv@bbvlegal.com.au if you wish to discuss this matter further.

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The Curse of Homemade Wills

In today’s economy, people aim to save and avoid unnecessary costs and expenses. Some consider that one such unnecessary expense is instructing a solicitor to draft your Will. This suggestion may stem from the belief held by some that we are all able to write our own Wills (particularly if our affairs are simple) without any legal assistance or we can simply purchase a cheap ‘will-kit’ from the post office or local newsagency, in which all that has to be done is to fill in the blank spaces and to sign it.

There are, however, numerous risks associated with this course of action. These risks were clearly identified in the recent decision of the Supreme Court of Western Australia in Rogers v Rogers Young [2016] WASC 208. In this case, the Testatrix (‘Will-maker’) utilised a ‘will kit’, which is a type of homemade Will that can be purchased from most post offices and newsagencies. In her Will, the Will-maker gave the residue of her Estate to her daughter (her only child), and stated that in the event that her daughter were to predecease her, then the Will-maker’s nieces and nephews were to inherit her Estate. However, the Will also stipulated that, if at the time of her death any beneficiary of the Will was under the age of 18 years, then that beneficiary’s share would be held on trust for that beneficiary’s support, welfare and education until they reach the age of 25 years. As it turned out, at the time of the Will-maker’s death, her daughter who was to inherit her Estate was 16 years old (thereby being a minor). This meant that, on the face of the Will, a trust would need be administered for the daughter’s benefit until she reaches 25 years of age. However, as was mentioned in this case, it has been settled law since the middle of the 19th century that if the beneficiary of a trust is over the age of 18 years and has an absolute vested and indefeasible interest in that trust, then he or she can request that the trust be terminated and the trust property be transferred to him or her.

Given the legal uncertainty which arose from the Will, the Executor of the Will made an application to the Supreme Court, seeking directions from the Court as to the proper interpretation of the Will pursuant to s 45 of the Administration Act 1903(WA) and s 92 of the Trustees Act 1962 (WA).

Ultimately, the Court held that the daughter acquired an absolute vested and indefeasible interest in the trust property upon reaching the age of 18 years and not 25 years, despite the apparent intentions of the mother that her daughter should not receive the residuary estate until she has reached the age of 25 years.

In this decision, the Court made the following damning observation about homemade wills:

On numerous occasions when dealing with so-called homemade wills, I have observed they are a curse. Homemade wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense.

This case, therefore, highlights the problems that arise if people decide to draft their own Wills, namely:

  • Uncertainty as to the meaning of certain words or clauses in the Will, which leads to a dispute as to its proper interpretation;
  • The time and expense of having to go to Court in order for the Court to determine the correct and proper interpretation of the Will;
  • The risk that the Court might declare that the clause in question (or possibly the entire Will) is void or inoperable, giving rise to a partial or full intestacy, which means that that part of the Estate which was dealt with under the inoperable clause will now have to be determined under the intestacy rules in the Administration Act 1903 (WA); and
  • The risk that the testamentary wishes of the Will-maker may not be given effect to.

It is therefore self evident that the benefits of avoiding the ‘curse’ by having an experienced estate planning lawyer draft your Will and effectively arrange your estate planning objectives greatly outweighs the potential consequences of not doing so.

PLEASE CONTACT

Contact us at bbv@bbvlegal.com.au if you wish to discuss this matter further.

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Blended Complications – Tetris for Estate Planners

Today, there are increasing numbers of blended families, which often causes confusion and concern when decisions must be made as to who will be provided for in a Will and in what proportions. The definition of a child in the eyes of the law obviously includes biological children. However, it also includes adopted children. Therefore, any such “child” has standing to bring a claim against their deceased parent’s Estate.

An example of a child’s right to adequate provision under a parent’s Will is the decision of Mead v Lemon [2015] WASC 71 which saw the Supreme Court of Western Australia determine that $25 million was adequate provision for mining heiress Olivia Mead – the daughter of mining magnate Michael Wright (“the deceased”) – who commenced proceedings in the Supreme Court under the Family Provision Act 1972 (WA) for further provision from her late father’s Will.

In this case, the deceased died on 26 April 2012. The deceased married four times in his life. He had three children from one marriage and Olivia (his youngest child) was the result of a relationship the deceased had with Olivia’s mother. Olivia’s mother and the deceased never married.  In the deceased’s Will, Olivia was to inherit $3 million (subject to strict conditions), compared to her half siblings who stood to inherit approximately $400 million each. The Executor of the Will has appealed the Court’s decision to award Olivia $25 million and the matter is currently before the Court of Appeal.

This case highlights that making appropriate provision for your children is a crucial consideration in the estate planning process. It also demonstrates that, failing to make adequate provision for your children – even though you may not have had a close relationship with them – may result in those disinherited children bringing a claim against your Estate.

Another issue arising from blended families is the provision for stepchildren.  Until recently, stepchildren were unable to make a claim under the Family Provision Act. The recent amendments to the Family Provision Act provide that a stepchild can make a claim in specific circumstances and usually in circumstances where the stepchild was financially dependent on the stepparent, or where the stepchild’s biological parent left his or her entire estate to their new spouse or partner, who in turn does not leave adequate provision for that stepchild.  Accordingly, even though a stepchild may not be a “child” in the eyes of the law, he or she may still be able to bring a claim against your Estate.

The fact that your children and other close family members can challenge your testamentary wishes highlights the reason why it is crucial to seek sound legal advice when dealing with your estate planning and business succession planning. The benefits of carefully and effectively arranging your estate planning far outweigh the dire consequences of not doing so and leaving important matters unaddressed.

PLEASE CONTACT

Contact us at bbv@bbvlegal.com.au if you wish to discuss this matter further.

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Who Inherits Prince’s Diamonds and Pearls?

Despite achieving the status of music royalty, Prince’s untimely death at the young age of 57 years has once again highlighted the simple fact that no one can avoid the fallout from dying without a Will.

Whilst hard to believe that a superstar of Prince’s status would not execute a single document to say who inherits his wealth,  his family have filed papers to declare that Prince died without a Will. This means that Prince died ‘intestate’ and his family and the Courts are left to deal with the resulting mess that is likely to take years to sort out – not a legacy that Prince is likely to have wished to leave behind.

So, what happens to Prince’s ‘Little Red Corvette’ and other assets?  That will be up to the law in Minnesota… but what would happen if Prince lived right here in Western Australia and held his assets here?…

If Prince lived in Western Australia, there is a formula imposed by section 14 of the Administration Act 1903 that dictates who inherits the estate and in what proportions. Although each person’s intentions are different, it is very unlikely that this formula will mirror exactly what each person wishes to happen to their estate and therefore will most likely be problematic.

For example, if Prince died leaving a wife and children, the wife would receive a statutory legacy of $50,000 and one third of the remainder of his estate. The other two thirds would be divided between his children. Interestingly, the statutory legacy of $50,000 (which represented the median house price in the 1980s – definitely a ‘Sign o’ the Times’) has not increased since 1982.  For many widows or widowers left behind, $50,000 plus a third of the estate is simply not enough to maintain the same standard of living that the widow or widower may have become accustomed to whilst the deceased was alive.

If a beneficiary is not sufficiently provided for by the section 14 formula, their only recourse is to commence proceedings under the Family Provision Act 1972, which normally incurs significant legal costs and entails lengthy delays in finalising the estate.

By delaying the crucial exercise of making a Will, you run the real risk of dying intestate.  It is unfortunate when fighting over money takes precedence over mourning the loss of a loved one. To actively attempt to avoid disputes with respect to your estate, everyone should have (at the very least) a basic estate plan, including a valid and up to date Will.

PLEASE CONTACT

Contact us at bbv@bbvlegal.com.au if you wish to discuss this matter further.

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