Our Blog

Here you can find general information regarding some of our areas of practice......every one is different, so it is always best to get advice ensuring that all of your circumstances have been considered...

What if someone is a bit vague or believes things that aren't true, can they make a will?

  • The legal terms for this Capacity to make a will.
  • The classic definition was given in a 1870 case of Banks -v- Goodfellow where the test was said to be that the person making the will must:
    • understand the nature of making a will and its effect
    • where a house has to be cleaned up and this involves a reasonable amount of unpaid time (not when you engage a cleaner to do it)
    • known the extent of the property they own or may own at the time of death
    • comprehend and appreciate the claims (ie. moral claims) that they should take into account
    • suffer no disorder of the mind that poisons their affections, perverting their sense of right or prevent the exercise of natural faculties
    • that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

My father has made a will but he held the original it and it can't be found. Can a copy of the will be used instead of the original?

  • When a person makes a will and the original was last seen in their possession but can't be found when they die, then there is a legal presumption that they have destroyed the original intending to cancel the will.
  • Like other legal presumptions, evidence can be given in court to overcome this. Such evidence might be given by witnesses relating statements by the deceased shortly before death that show he/she still intended the will to operate. But in the absence of any evidence as to what happened to the original, or statements to support the intention that the will still operate, the person will be found to have died without a will.
  • in such circumstances, the Court will require the persons who would have received a benefit on intestacy to be notified and given the opportunity to dispute the use of the copy.
  • when the presumption can be overcome, evidence of the terms of the will may be accepted by the court even if a copy can't be found.
  • When attempting to obtain probate on a copy of a will, the Supreme Court will require that all persons who would have received the estate on Intestacy be notified of the application and given an opportunity to object.

What if something is put in the will by mistake?

  • the Supreme Court will not grant probate on a will which was not fully known and approved by the testator.
  • due execution of a will (signing it in front of witnesses) raises a presumption that the testator knew and approved of its contents
  • probate may still be granted of the will but excluding parts that were included because of fraud, mistake or inadvertence
  • the terms of a will can be 'rectified' by the Supreme Court if it is satisfied on evidence that there is a mistake.

Glossary - explanation of terms

  • Testator - the person who makes the will
  • Executor - the person(s) who collect in the assets, pay the bills and distribute the assets to the beneficiaries.
  • Beneficiary - the person(s) who receive a benefit from the estate according to the terms of the will
  • Probate - the approval of the Supreme Court to the will.
  • Intestacy - when a person dies without a will.
  • Household chattels (where someone dies without a will) - there is a lengthy definition in the Wills Probate & Administration Act Section 61A (which is too boring to include) but it specifically excludes motor vehicles, boats, aircraft, racing animals, original painting, trophy, clothing, jewellery or other chattel of a personal nature.

I have young children, should I appoint a guardian for them?

  • A guardian appointed in a will (called a testamentary guardian) is the person entitled on your death to make decisions for your children. It would not bind a court but would be valid unless over ruled by a court. The problem is that the persons most suitable to have this role when you make the will may be unsuitable when you pass away. People most suitable for guardian situations are:
  • single parents
  • people without family in Australia

 

I am an executor in a will. Do I get paid for my time and trouble ?

  • An executor who wishes to be paid for his time and trouble can claim 'commission'. This is an amount determined by the Supreme Court as compensation for what was involved.
  • If an executor is also left something in the will, this is taken as payment for their time andtrouble. They can get nothing more unless the will specifically allows them commission.
  • To make a claim for commission, an executor would normally have to do something more than just go to his solicitor and tell him to do the work.
  • Examples of cases where an executor would be entitled to commission are:
    • where a business has to be run to sell as a going concern
    • where a house has to be cleaned up and this involves a reasonable amount of unpaid time (not when you engage a cleaner to do it)
  • The amount of commission is determined by the court based on the amount of trouble but something around 0.5-2% of the estate would be usual.
  • A full set of accounts of the estate have to be provided to the court if commission is claimed.

When is someone considered legally dead?

  • death is defined by law as the irreversible cessation of all functions of the person's brainor irreversible cessation of circulation of blood in the person's body.

What happens to a persons property when they someone just disappears?

  • If a person is not heard of for 7 years, an application can be made for Probate of their will (if there is a will) or Letters of Administration of their estate (if there is no will).
  • Death must be the most likely explanation for silence.  This means that they more likely disappeared to avoid paying their debts.
  • The time may be shortened if they were exposed to 'unusual perils' such as being lost at sea or in a plane.  This is what happened to the passengers of the plane that disappeared on the way to Lord Howe Island.
  • Sometimes the declaration of death is made by an inquest into the disappearance.

What happens if a witness dies?

  • The will is still valid
  • The only problem is that the witness can't give evidence that the will was freely signed by the Testator.  This will only be a problem if there is a dispute over the signing of the will.

 

What happens if my executor dies before you?

  • If he dies either before you or after you but before obtaining probate of your estate, the other executors (if you have named more than one) take on the task. If this leaves you with no executor, the principal beneficiary will have to apply for 'Letters of Administration with the Will Annexed'.
  • If one of your executors dies after you and after obtaining probate of your estate but before the estate is finalised, the other executors continue the task. If there are no other executors, the executor of the deceased executor takes over both your estate and the executor's estate.

What happens if two beneficiaries die together?

  • When it can't be decided who died first, the law presumes people to die in order of seniority (ie. eldest first). This may mean that the assets of the elder pass to the younger and then to the beneficiaries of the younger.
  • If two people own an asset as joint tenants (the other form of joint ownership is called 'tenants in common') then a rule known as 'survivorship' applies. This rule means that when one dies, it automatically passes to the other, regardless of what the first persons will said. If they both die together, it passes to the younger and then to the younger's beneficiaries.

What happens when a beneficiary in a will dies either before the person who made the will ?

  • When a beneficiary dies before the person making the will, the benefit 'lapses'. This means it will pass to the person who was to receive the 'residue' of the estate. If there is no 'residue' clause, this will be the person(s) who would get it on intestacy.
  • However, if the person who was to receive the benefit is a child of the person making the will and they have children of their own (grand children) their share passes to their estate (which may or may not mean the grand children).
  • When a beneficiary dies after the person making the will, their share is part of their estate and will pass to their beneficiaries, even if they haven’t received the funds from the first estate.

My aunt left a handwritten note saying that she wanted everything to go to me when she died but it is not signed or witnessed. Does it have any legal effect?

  • The Supreme Court now has power (since 1989) to give effect to any document that appears to have the intention to be a will. Evidence can be given of statements of the deceased about their intentions.
  • The case of the famous painter Brett Whiteley is an example of this where the Supreme Court accepted evidence by a witness to a handwritten will of its contents though it could not be found.

My uncle left me a house in his will but the house was sold before he died and the money put into a bank account. Can I have the money ?

  • Depends who sold it. If your uncle sold it himself, you are out of luck. If it was sold by his ‘Power of Attorney’ or the Protective Commissioner then you are entitled to the proceeds of sale, if you can prove where they went.

How can I cancel a will that does not reflect my current wishes ?

  • Make a new will. A standard clause in a will says 'I revoke all previous wills'.
  • Destroy the will or write cancelled on it. You need to have the original for this. The destruction must clearly be with the intention of revoking the will, not just accidental.
  • you can direct someone else to destroy the will but it must be done in your presence. It is not sufficient to ring your solicitor and tell him to destroy it.
  • by some writing (ie. a letter) that is signed in the same manner as a will (with 2 witnesses etc).
  • You can't authorise someone else to revoke a will after your death.

How often should I update my will?

  • Only marriage will cancel a will but circumstances change and this means your will might need to change too.  If you loose a spouse or child then you should review the will.

I have married since I made a will. Does this make any difference ?

  • the general rule is that marriage cancels a will so you now have no will - if you died without making a new will, the rules of intestacy would apply to you.
  • The exception to the rule is if the will is made 'in contemplation of marriage'. It is best if these words are stated on the will but the terms of the will or surrounding circumstances may show that marriage was being considered in making the will.
  • Divorce does not invalidate a will but such ex-spouse is dealt with as if they had died before you. If you want to provide for an ex-spouse the will would have to be very specific. I suggest words like 'This clause is intended to apply even though I have divorced ...'

I have heard of Testamentary Trusts. Does this have anything to do with a will? Can they save tax ?

  • A Testamentary Trust is any trust created by a will.
  • The term is also used to refer to a trust created with money that came from an estate.
  • It is common in a will to make gifts to children. They might be your children or grandchildren. If these gifts are invested and earn interest, this interest will be income in the child's name. Normally a child (under 18) is only allowed to receive $416 per annum unearned income before paying tax at the maximum rate. This rule was introduced a few years ago to stop high income earners splitting their income through family trusts into their children's names. However, there is an exemption to this rule. If the trust income comes from assets left by an estate, then the normal tax rates and exemptions apply.
  • this means that the first $6,000 is tax free and the progressive rates of tax apply to the balance. The savings can be substantial.
  • you must have an estate of sufficient size to justify setting aside funds for infant beneficiaries and still provide for adult beneficiaries.
  • the exemption can also apply to funds you have placed into a trust for children when the funds have been left to you from an estate. There are more restrictions on this type of trust and the funds must be put into the trust within 3 years of the death. Also limits on the amount of benefit apply.

What happens to my debts when I die?

  • They are paid by selling your assets. This is the job of your executor.
  • The executor has to determine what are your assets and what are your debts. He/she must sell your assets, pay your debts and distribute the balance according to your will.
  • your home may have to be sold to pay your debts unless there are other assets available.
  • As part of an application for probate, your executor is required by law to advertise that he is going to apply for probate or your estate and invite people to make claims in your estate. The solicitor would normally arrange this advertising. If you look in the legal pages of the Sydney Morning Herald you will see such ads.
  • if your debts exceed your assets, they can't be paid. Your next of kin are not responsible for your debts (unless they have guaranteed them somehow).
  • your executor is personally liable for any income tax you owe.

Does GST affect an estate?

  • It depends on what assets are in the estate. If the deceased controlled a business which has therefore passed to the estate, then the estate needs to register for GST and put in returns etc. Legal fees of administering the estate will be liable for GST. If real estate is to be sold, the agent commission will be liable for GST. The matter will need to be looked at by your lawyer at the time.
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