SR Wills, Estates & Inheritance Case Studies
Inheritance Disputes, Will Challenges, Estate Planning Disputes
CASE STUDIES FOR
SR WILLS & ESTATES INHERITANCE LAWYERS
CASE STUDIES – WILL CHALLENGES
Lizzy's dad died and left her nothing in the Will
Lizzy thought that there was suspicious circumstances around her fathers last days so she got a Lawyer to check stuff out. When the case went to court the judge ruled that her brother had tricked her dad into changing his Will leaving her out completely, the Judge awarded Lizzy her proper portion of her fathers Estate.
Scotty had a falling out with his mum and hadn't seen her for over 20 years
Because he married a girl that she didn’t like, so she punished him and left him out of the Will, Scotty challenged the Will and argued that it was unfair to leave him out for such a selfish reason. Our Estates team arranged a mediation and he was finally awarded a fair share from his mums Estate.
Jess's mum remarried and left all of her Estate to Jess's step dad,
He died a couple of years after the mum but he didn’t provide for Jess in his Will. Jess’s Estates Team successfully went to court and a Judge ruled that Jess was not adequately provided for, and awarded her a decent amount of money from her step dad’s Estate.
FAQs
What is a Family Provision Claim ?
A Family Provision Claim is the legal term for an Application to the Supreme Court of New South Wales for a person to claim a share or larger share from the Estate of a deceased person. You could also call it a challenge to an Estate or a Contested Estate.
Who can make a Family Provision Claim ?
You can only make a Family Provision Claim if you are an ‘Eligible Person’ under the law and have been left out of a Will or you did not receive what you thought you were entitled to receive in Will.
Check here to see if your an Eligible Person
The Succession Act NSW at Section 57 defines the eligible persons who may make an application to the Court for a Family Provision order, they are:
1. A person who was the wife or husband of the deceased person at the time of the deceased person’s death.
2. A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death.
3. A child of the deceased person.
4. A former wife or husband of the deceased person.
5. A person who was, at any particular time, wholly or partly dependent on the deceased person.
6. A grandchild of the deceased person or any person dependent on the deceased who was, at that particular time or at any other time, a member of the household of which the deceased person was a member.
7. A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
What kind of things will a Court consider when making an order ?
Before making an order, the court will consider the following:
The relationship between the applicant and the deceased person
Any obligations or responsibilities owed by the deceased person to the applicant
The value and location of the deceased person’s estate
The financial circumstances of the applicant, including their current and future financial needs
Whether the applicant is financially supported by another person
Whether the applicant has any physical, intellectual or mental disabilities
The applicant’s age
Any contribution made by the applicant to increase the value of the estate
Whether the deceased person has already provided for the applicant during their lifetime or from the estate
Whether the deceased person provided maintenance, support or assistance to the applicant
Whether any other person is responsible to support the applicant
The applicant’s character
Any applicable customary law if the deceased was Aboriginal or Torres Strait Islander
Any other claims on the estate
Any other matter the court may consider as relevant.
How long do you have to make a Family Provision Claim ?
If you are an eligible person and you think you are entitled to make a claim on the deceased estate, you should get legal advice. Your application must be made to court within 12 months from the date of the deceased’s death. However in certain circumstances you may apply for a claim later than the 12 month period.
How do I make a claim ?
One of our Legal professionals will make an application for family provision by filing certain forms in the Supreme Court of New South Wales.
ESTATE PLANNING CASE STUDIES
Connie filled out a do-it-yourself Will online so she could save a few dollars,
When she passed her kids got a lawyer to finalise her Estate and they were hit with a huge tax bill that almost wiped out their share of the Estate. What Connie needed to do was to get a lawyer to write a proper Estate Plan to suit her individual needs. Had Connie taken advantage of proper estate planning, her kids would have paid hardly any tax at all.
Bill was mowing the lawn and he fell down and died suddenly of a heart attack,
Soon after his wife Maria passed away as well. They only had one child and he was a drug addict. Due to their lack of Planning their son received the whole of his parents Estate, spent it on drugs and sadly died of an overdose soon after. A proper Estate Plan could have protected their son and the estate by only allowing their son to take a small amount of money at a time until his life was more stable.
Georgia and Sally wanted to have a child so
They got there best friend Sean to donate what he needed to so that they could have a child, it all went well and the girls had a beautiful little girl, but the three of them wanted to know that little Sofie was well looked after in case anything happened to them, so the three of them wrote special Wills that protected little Fia encase anything ever happened to any of her parents.
Things to keep in mind regarding your Estate…
Why is it important to have an up to date Will ?
If you don’t have a will your assets will be distributed according to the intestacy laws of your state. This means your assets may not go to who you want them to.
An up-to-date will can give you the assurance that your loved ones will be provided for as you intend.
Your solicitor can help you choose an executor and draft a legal will that sets out:
Who will receive your assets after you die – e.g. property, possessions, bank account balances, shares and managed funds
Who will look after your children
Your wishes regarding your funeral and burial
While it’s possible for a legal will to be contested, setting out your wishes clearly and with the help of a legal professional can make contesting difficult.
Keep in mind that a will won’t cover assets that you own with someone else as a joint tenant. The surviving tenant will automatically get ownership of your share.
You can amend your will if your circumstances change, such as when you marry, divorce or welcome the arrival of children or grandchildren. Small changes can be made using a legal document called a codicil. If you want to make substantial changes, it’s a good idea to create a new will.
Superannuation considerations
Superannuation is not automatically paid to your estate in the event of your death – where it is paid will depend on your fund’s rules and any death benefit nominations you’ve made.
A Binding Death Benefit nomination or Non-lapsing Death Benefit nomination is a written nomination made to your super fund to make sure that your death benefit – which includes the total super balance and any life insurance held in the fund – is paid out according to your wishes.
Without this type of nomination, your super fund may be able to use its discretion to choose which of your eligible beneficiaries receive your death benefit, or a default procedure may apply (e.g. it may automatically be paid to your estate).
In most cases a Binding Death Benefit nomination only remains valid for three years, so it’s important to regularly renew it. A Non-lapsing Death Benefit nomination will – depending on your fund’s rules – generally remain in place unless you cancel it or replace it with a new nomination.
It is important to periodically review any Binding or Non-lapsing Death Benefit nominations you have to ensure they remain valid and in line with your wishes.
Life insurance outside super
If you are the policy owner and don’t nominate a beneficiary, and the benefit is $50,000 or more, it will be paid to your estate. In this case there is a legal requirement to provide Probate or Letters of Administration (LOA) before the benefit can be paid. These are legal documents proving that the executor is authorised to manage your affairs. If the benefit is less than $50,000 it may be paid directly to certain individuals1 including a spouse or child where the policy owner does not nominate a beneficiary.
Manage tax consequences
Your beneficiaries may end up with a hefty tax bill if you don’t plan how they will receive your assets. This is because the way you distribute your assets could have tax implications, including Capital Gains Tax (CGT).
Fortunately, there are ways you may be able to manage tax impacts. For instance:
Insurance policy proceeds from a super fund are tax-free if they’re paid to dependants
A CGT liability can be deferred if a beneficiary of your estate is given an asset rather than the proceeds from the sale of that asset
Incorporating testamentary trusts into your will can help manage tax.
Power of Attorney (PoA)
There are a few different types of PoAs, including specific, limited and general, that allow a person you nominate to carry out particular tasks on your behalf. However, an Enduring PoA will let that person legally act on your behalf up until you pass away, even if you become incapable of managing your own affairs.
You can also choose to appoint an Enduring Power of Guardianship that allows a person to make decisions about your health care, lifestyle and where you live.
It’s important to choose someone you trust and seek independent legal advice to make sure you understand the risks involved in giving someone else control over your affairs.
A financial planner can work with you and your legal adviser to get an estate plan in place for you and your family.
CASE STUDIES -MAKE A WILL
Max was 27 and didn’t have a Will
He suddenly passed away, he and his brother shaped surfboards together and had a cool collection. When his brothers Estate was sorted out everyone wanted a piece of the action and Greg’s brother missed out on getting the boards they made together. Greg could have made a simple Will and left all the Surfboards to his little brother. All items can be gifted in a Will not just big things.
Lisa was married and didn’t have a Will
Suddenly one day her husband did a runner with his young secretary, he moved out but they never divorced, Lisa hated him. After a year or so Lisa found a new love and was really happy. Sadly she had a car accident and passed away. Because she didn’t have a Will in place under the law all of her assets passed to her ex-husband. A simple Will would have protected her estate and passed it on to a person of Lisa’s choice.
Matt was a veteran of the Vietnam War
He had so many medals and lots of war memorabilia and he was sure the items were of significance so he made sure that in his Will he gifted the items to his favourite war museum so future generations could share his legacy, that made Matt happy.
Amanda died without a Will
She was not married and had no kids, her Estate was worth 4 million dollars and she had 7 siblings, none of the siblings got on and after she passed all the siblings went to court to fight about who gets their sisters money. It took two years and hundreds of thousands of dollars. All Amanda needed to do to avoid this was to have a valid Will in place.
Darrin had significant assets worth millions
But didn’t have a Will, he had two kids from a previous marriage and recently remarried a women that also had two kids. Darrin died soon after the wedding and under the law his estate was distributed according to state legislation. In the end David’s first children only received a minimal amount with the bulk of his Estate going to his second wife and kids. He could have protected his kids if he had a proper Will in place.
FAQs
What is a Will ?
All adults should have a valid will. It’s the best way to make sure that your assets are distributed in the way you would like after you die.
How much is a Will ?
Our Wills start at $550.00, that is for a very simple Will.
Wills that are more complex and include specific gifts to multiple beneficiaries, or Trusts go up from there.
Be careful with cheap do it yourself Wills, you get what you pay for in the Estates world so do it right the first time, after all its a small price to pay for the direction of your life’s work.
Why should I have an up to date Will ?
If you don’t have a will your assets will be distributed according to the intestacy laws of your state. This means your assets may not go to who you want them to.
An up-to-date will can give you the assurance that your loved ones will be provided for as you intend.
Your solicitor, a private trustee or the Public Trustee for your state or territory can help you choose an executor and draft a legal will that sets out:
- Who will receive your assets after you die – e.g. property, possessions, bank account balances, shares and managed funds
- Who will look after your children
- Your wishes regarding your funeral and burial
While it’s possible for a legal will to be contested, setting out your wishes clearly and with the help of a legal professional can make contesting difficult.
Keep in mind that a will won’t cover assets that you own with someone else as a joint tenant. The surviving tenant will automatically get ownership of your share.
You can amend your will if your circumstances change, such as when you marry, divorce or welcome the arrival of children or grandchildren. Small changes can be made using a legal document called a codicil. If you want to make substantial changes, it’s a good idea to create a new will.
Is my Super automatically paid to my estate ?
Superannuation is not automatically paid to your estate in the event of your death – where it is paid will depend on your fund’s rules and any death benefit nominations you’ve made.
A Binding Death Benefit nomination or Non-lapsing Death Benefit nomination is a written nomination made to your super fund to make sure that your death benefit – which includes the total super balance and any life insurance held in the fund – is paid out according to your wishes.
Without this type of nomination, your super fund may be able to use its discretion to choose which of your eligible beneficiaries receive your death benefit, or a default procedure may apply (e.g. it may automatically be paid to your estate).
In most cases a Binding Death Benefit nomination only remains valid for three years, so it’s important to regularly renew it. A Non-lapsing Death Benefit nomination will – depending on your fund’s rules – generally remain in place unless you cancel it or replace it with a new nomination.
It is important to periodically review any Binding or Non-lapsing Death Benefit nominations you have to ensure they remain valid and in line with your wishes.
What about my LIfe Insurance
Life insurance policies outside super generally let you nominate who should receive the benefit if the life insured passes away. There could be multiple parties involved – typically the life insured, the policy owner, the person paying the policy premiums and the beneficiary. It’s common for these parties to be one individual, but not essential.
If you are the policy owner and don’t nominate a beneficiary, and the benefit is $50,000 or more, it will be paid to your estate. In this case there is a legal requirement to provide Probate or Letters of Administration (LOA) before the benefit can be paid. These are legal documents proving that the executor is authorised to manage your affairs. If the benefit is less than $50,000 it may be paid directly to certain individuals including a spouse or child where the policy owner does not nominate a beneficiary.
What Tax issues do I need to keep in mind ?
Your beneficiaries may end up with a hefty tax bill if you don’t plan how they will receive your assets. This is because the way you distribute your assets could have tax implications, including Capital Gains Tax (CGT).
Fortunately, there are ways you may be able to manage tax impacts. For instance:
- Insurance policy proceeds from a super fund are tax-free if they’re paid to dependants (see the ATO’s definition – Who is a dependant under taxation law).
- A CGT liability can be deferred if a beneficiary of your estate is given an asset rather than the proceeds from the sale of that asset
- Incorporating testamentary trusts into your will can help manage tax. This is something our estate planning team can help you with and you can find out more about testamentary trusts at ASIC’s MoneySmart website.
Do I need a Power of Attorney (PoA)
There are a few different types of PoAs, including specific, limited and general, that allow a person you nominate to carry out particular tasks on your behalf. However, an enduring PoA will let that person legally act on your behalf up until you pass away, even if you become incapable of managing your own affairs.
You can also choose to appoint an enduring Power of Guardianship that allows a person to make decisions about your health care, lifestyle and where you live.
It’s important to choose someone you trust and seek independent legal advice to make sure you understand the risks involved in giving someone else control over your affairs.
A financial planner can work with you and our legal team to get the right estate plan in place for you and your family.
What is a Testamentary Trust ?
A testamentary trust is a trust created within a Will that arises upon the death of the Testator that is set up in order to hold assets overseen by the nominated trustee, who eventually distributes the trust assets to the beneficiaries.
Who can make a Will ?
Why should you have a Will ?
What's in a Will ?
Who receives your assets.
Your wishes for funeral, cremation or other arrangements.
Who will look after your kids if there under 18
What makes a valid Will ?
For a Will to be valid it must be :
– in writing, handwritten, typed or printed
– signed and dated on every page and witnessed
by 2 people who are not beneficiaries in the Will
nor their spouses. They will have to witness your signature and sign
their own name on every page.
– they both need to be present at the time with
you and use the same pen with one staple
through the document.
-If your Will does not meet these requirements, it may not be enforceable.