Testamentary Trusts

It is well settled that a person can, by contract, restrict his or her testamentary freedom. This can be done in several ways.

It is clear from decided court cases that the Court accepts that willmakers are in certain circumstances entitled to make no provision for children, particularly in the case of children who treat their parent , the willmaker, callously, by withholding without proper justification their support and love for them in their declining years. Even more so when that callousness is compounded by hostility.

The function of a caveat in probate proceedings is to obtain a stay of proceedings seeking probate, administration or resealing except upon notice to the caveator, i.e. the person who lodges the caveat.

Generally, the Supreme Court of New South Wales will not grant probate or letters of administration to an applicant living outside of Australia.

In order to make a will a person must have sufficient mental capacity. If a person does not have the required mental capacity their will may be found to be invalid.

The Law Society Council has issued a statement on wills practice to address concerns with developments in internet will drafting and the potential for problems of identification, verification and assurance that a willmaker is giving direct instructions free of influence or coercion by relatives, carers, or other third parties.

The power of attorney is an important and powerful legal tool. It allows you to appoint a trusted person to act on your behalf in relation to your legal and financial affairs when you are temporarily or permanently incapacitated. Some recent changes to the forms used to appoint a power of attorney clarify certain aspects of the process of appointment.

A power of attorney is a legal document where you, as the ‘principal’, appoint another person your attorney to control and make decisions on your behalf regarding your legal and financial activities which could include dealing with your money, bank accounts, real estate, shares or other assets. If you want your attorney to deal with real estate, the power of attorney must be registered with the Land and Property Information Office.

An Application for a Grant of either Probate or Letters of Administration on presumption of death occurs in every case where the deceased’s body cannot be found. This is the case even though a Certificate of Death may have issued.

An issue sometimes facing a plaintiff is establishing the identity or whereabouts of persons to whom the deceased’s estate or part of the estate should be distributed and the inability, despite adducing all available evidence, of ruling out the possibility that a person exists or that person had descendants who might still be alive.

There are several ways that a testator (the person who is making the will) can store her/his will and/or information about her/his will.

You may have made a will or be considering the possibility of making a will outside NSW. The relevant legislation deals with this situation.

Section 58(2) of the Succession Act 2006 requires an application for a Family Provision Order to be made not later than 12 months from the date of death of the deceased person unless the court otherwise orders “on sufficient cause being shown”.

It is settled law that a solicitor retained to draw a will and ensure that the will drawn up takes effect in accordance with its terms owes a duty of care to an intended beneficiary under the will. That duty gives rise to a duty to exercise reasonable care and skill in performance of those tasks – High Court decision of Hill v Van Erp 1977 HCA 9.

The doctrine of suspicious circumstances was explained in the case of Vernon v Watson (2002) NSWSC.

It is often said that concepts of testamentary capacity and knowledge and approval of a will are distinct, and that the issue of knowledge and approval only arises once it is found that a willmaker has testamentary capacity.

The making of an Order appointing the NSW Trustee & Guardian the manager of a person’s estate does not in all circumstances lead to the conclusion that the managed person lacks testamentary capacity during the currency of the order.

There are a number of times in your life when you should review your will to make sure that it will give effect to your intentions in relation to your property and estate.

Did you know that your will actually becomes invalid once you marry? Only in special circumstances does its validity continue after you marry.

The importance of estate planning is most clearly seen when unforseen circumstances occur.

Section 10 of the Succession Act 2006 appears under the heading “Can An Interested Witness Benefit From A Disposition Under A Will?”

To make a valid will a person must have testamentary capacity which is described as being “... of sound disposing mind when the will is made and there must be no coercion which overpowers the volition of the testator” – Hall v Hall (1868).

The approach to the issue of determining testamentary capacity has changed little since the 1924 decision of Bailey in which the following principles were set out.

Undue influence in probate is different from the equitable doctrine of undue influence.

A minor is the legal description of a person under the age of 18 years. As a general rule a minor cannot make a will.

Debts do not just disappear when you die. Effective estate planning includes ensuring you are debt free when you die or alternatively leaving enough money behind so that your family are not left dealing with your debts.

When a person dies without a will institutions such as banks, insurance companies and superannuation funds will often require someone to be granted Letters of Administration before funds of the deceased are released.

Lucy, Kate and Mark are concerned that if Rebecca dies before Ronald, he will gamble the estate away and Ronald will become financially dependent on them and/or will incur gambling debts that he will not be able to repay.

A claimant has 12 months from the date of the deceased’s death to bring a claim for provision from the deceased’s estate. Under s58(2) of the Succession Act 2006 (NSW) the court may extend the time limitation where the claimant can show ‘sufficient cause’.

John and Mavis were married. John had one daughter Edwina. In 2001 John made a Will leaving his house to Mavis and the residue of his estate to Edwina. In 2005 John sold the house. John died after the house was sold.

When making your Will one of the key decisions you must make is who to appoint as your executor.

With easy access to cheap and even free will kits why pay a lawyer to draft your will?

When Barry signed his will he failed to pick up the mistake. When Barry died “The Gin Palace” had already been sold and as a result Tina was left without an inheritance. When such an error is made there are several options open to a beneficiary in Tina’s position.

Depending the size of an estate and the nature of the will, being appointed and executor can be an onerous task. For example if the estate is large and includes a variety of assets an executor may spend many hours arranging the sale of those assets to realise their value before distribution. If the will is contentious the executor may be named as a defendant in proceedings brought by beneficiaries or claimants under the will.

The rule with wills is that a later valid will prevails over an earlier valid will. The party claiming that the later will should prevail has the onus of proving that the later will is valid.

To begin with if you have a complex asset structure an estate planner will be invaluable in making sure your assets are devolved efficiently and in manner that affects your wishes. But more importantly a lawyer is in the best position to ‘future proof’ your will. That is draft it in a way that reflects your wishes and prevents your will being challenged once you die.

Lucy’s father died some years ago and her mother, Esther died late last year. Lucy has an older sister who lives overseas and a younger brother. After searching Esther’s house high and low and contacting Esther’s lawyers, Lucy was unable to find any will made by her mother. Esther had a house in Petersham, two bank accounts, a superannuation fund, a car and various personal effects. When Esther died she had a modest credit card debt as well as some outstanding utility bills.

As Australia’s population rapidly ages euthanasia is becoming an ever more pressing issue. Some people who advocate euthanasia are already at a stage in their illness where they require assistance to take the own lives. This puts any person assisting to bring about the death who is also a beneficiary of the estate in a difficult legal position. Not only do they risk criminal prosecution but it can affect their position as a beneficiary of the estate of the person wishing to die.

Under s26 of the Status of Children Act 1996 a party to proceedings may apply to the Supreme Court for an order requiring a parentage testing procedure to be carried out for the purpose of obtaining information to assist in determining the parentage of the child.

Before Jim and Genevieve married they decided to execute mutual wills. A mutual will is where each individual has a separate will but they confer reciprocal benefits on each other. Jim’s will stated that he would leave all of his estate to Genevieve and if she died the estate would be divided equally between their two children Julia and Jonty. Likewise Genevieve’s will left everything to Jim and to their two children if he died.

In September Noreen handed Ngaire an envelope and said, “This is my will. You don’t need to read it now. Just hold on to it until I die.” Ngaire did not open the envelope but put it safely away in her top draw.

For many, the processes of estate planning involves thinking about their family and loved ones - trying to take their circumstances into account and considering what measures they would like to take to promote their future happiness.

Some of the world’s super rich such as Bill Gates and Warren Buffet have famously left the bulk of their estate to charity and their children only a small fraction of their fortunes. Can you safely leave the majority of your estate to charity? Can you challenge your parent’s will if they have left a larger portion of their estate to charity than to you?

If someone promises to take care of you financially and then they die, what do you do?

The case of Wingrove v Wingrove (1885) is the authority for the proposition that a testamentary disposition does not have a testator’s knowledge and approval if the testator was coerced into making a bequest.

In Estate of Slavinskyj (1989), testamentary dispositions written on the back of a packet of cornflakes were held to be valid.

A prominent Cricket fan wishes to make a will, but doesn’t trust anyone associated with the consortium for which he barracks to witness it for him.

If the deceased died after 1 March 2009, proceedings for a family provision orders are commenced pursuant to the Succession Act 2009. The Family Provision Act 1982 was replaced by the Succession Act 2009 on 1 March 2009. A claimant has 12 months from the date of death in which to commence proceedings for a family provision order.

A claim for an order from a deceased person’s estate for a family provision can be made up to 12 months from the date of death.