follow us on facebook
CONTACT US 13 58 28
Category

Wills and Estates

Can Your Ex-De Facto Inherit Under Your Will?

By | Family Law, Wills and Estates

No two people who embark on a relationship together hope that it will fail. Both partners take steps to progress their relationship: moving in together, splitting bills, combining finances, and perhaps even writing wills together. At the time they are written, these wills reflect the trust you have in your partner and the desire to provide for them in the event of your death. Sadly, de facto relationships break down just as often as marriages. In the aftermath of a split, disentangling two lives is both complicated and stressful, and these factors can lead to oversight. What happens if you forget to change the contents of your will and then pass away?

What is a de facto relationship?

According to the Family Law Act of 1975, a de facto relationship involves two parties of the same or opposite gender living together on a genuine domestic basis.  A de facto relationship will be deemed to have arisen after a period of living together for two years or if there is a child of the relationship.  The Court may also deem a relationship as de facto earlier than two years if a party has made substantial contributions to the relationship and there would be serious injustice in the relationship is not recognized

For the purposes of the Succession Act 1981 (Qld) there is a further requirement that the two parties lived together as a couple on a genuine domestic basis for a continuous period of at least 2 years at the time when one of the parties passes away.

Can your ex-de facto partner inherit from you?

Consider the situation in which your de facto relationship ended, you passed away, your will was never changed and now your ex is seeking to inherit his or her share, much to the displeasure of your family and friends. What happens now? Well, after June 5, 2017, de facto relationships are now treated in the same manner as marriages. This means that upon dissolution of the relationship, a de facto spouse’s appointment as executor of the will shall be automatically revoked, along with any gift left to them under the will.

Differences to ending a marriage

As mentioned above, de facto relationships are meant to be treated the same way as marriages. In the same way that divorce revokes appointments and benefits left to the ex-spouse in the will, so too will the dissolution of a de facto relationship.

However, what most people might not realize is that revocation of dispositions and appointments to an ex-spouse in a will after marriage only occurs when a divorce order of the Family Court has been issued. Many assume that it happens as soon as the married couple begins the year of separation required for a divorce in Australia, but this is not the case. Though merely ending a de facto relationship will revoke these will provisions, the end of cohabitation between married couples will not because a formal divorce is required.

What if I want them to inherit?

Some people are able to maintain healthy and happy relationships with their ex-partners. If you are one of these people, you may want to keep will provisions that appoint your former partner the executor of your estate or bestow gifts on them. To prevent automatic revocation, you must include a specific contrary intention within the will.

Keeping wills up-to-date

What if your ex de-facto is claiming that the relationship hasn’t ended when you pass away?  While a divorce order in a marriage is conclusive evidence of the dissolution of the relationship, there is no such document for de facto relationships.  In the event of a relationship breakdown t is important to update your will to reflect the change in your circumstances.  Outdated wills can cause unwanted costs, delay and distress to the administration of your estate.

Unfortunately, many people spend so much time in bitter property settlements and acrimonious family law proceedings that they forget all about updating their wills. In fact, a shocking number of Australians do not have updated wills, with studies showing that around 45% are living without a valid will. Most legal professionals suggest that you revisit your will (and other estate planning documents) every three to five years, or after a significant life event (such as the breakdown of a relationship) to ensure it is up-to-date and reflects your truest intentions.

Conclusion

Wills are complicated formal documents that must conform to strict legal requirements. As such, it is not advisable to prepare one on your own. Because of their complicated nature and the pain surrounding such topics, many leave estate planning until it is too late. If you or a loved one have any questions regarding de facto relationships, the validity of will provisions, or revising a current will, seek legal advice as soon as possible.

Probate

Supreme Court Admits an Unsent Text Message to Probate

By | Wills and Estates

Last month the Supreme Court of Queensland handed down a judgment in the matter of Re Nichol; Nichol v Nichol. This case follows a line of cases dealing with informal documents and whether or not they can be construed as a Will. In this particularly interesting example, an unsent text message addressed to the deceased’s brother was determined by the Court to be a valid Will.

Queensland’s Succession Act 1981 provides the formal requirements to be observed when executing a Will. If these requirements are not met, the Will is invalid. However, there is scope in the Act to admit informal documents to probate provided that the Court can be satisfied that:

  1. There was a document;
  2. That document intended to embody the testamentary intentions of the deceased person; and
  3. The evidence satisfies the Court that the deceased demonstrated that it was his or her intention that the document should operate as his or her Will.

The Court must also be satisfied that the deceased had testamentary capacity at the time the document was prepared.

In Nichol it was argued by the deceased’s spouse that because the text message was never sent that the deceased did not intend for it to operate as a Will. She also argued that the deceased did not have capacity at the time he made the Will.

The deceased unfortunately committed suicide. The Court found that the fact that the text message was never sent was indicative of the deceased’s intention to ensure that his brother did not come and find him following his suicide attempt, rather than evidence that the deceased did not intend it to be his Will. The text message included the deceased’s initials, date of birth, the date of the message and the words “my Will”. The deceased was also clearly aware of the extent of his assets which were set out in the document. The Court was satisfied, on the basis of all of the evidence, that the document could be construed as a Will.

Applications under s18 of the Act in relation to informal documents are becoming more frequent as people use their electronic devices to record their testamentary intentions prior to their death. It is apparent that there is a wide scope of types of documents which might be considered informal Wills and that where the evidence demonstrates a clear intention on behalf of the deceased that the Court will endeavour to give effect to those wishes.

This case is a timely reminder of the value of having a properly prepared Will in place. Proving an informal document to be a Will is a long and difficult process. In this case expert testimony was required as well as significant medical evidence as to the deceased’s state of mind. The costs incurred on behalf of the deceased’s estate would have been very substantial and could have been easily avoided by having a Will prepared by a solicitor, at comparatively minimal expense.

Unfortunately for this estate, the application in relation to the text message Will might be just the beginning. The deceased’s wife and son have potential claims for further and better provision from the estate as no provision was made for them in the Will. Seeing a solicitor to talk about estate planning options to minimise the impact of potential claims on your estate is highly recommended. We have a team of expert Wills & Estates Solicitors able to assist you with all aspects of your estate planning.

Why Should I Pay a Solicitor to Make a Will for Me?

Why Should I Pay a Solicitor to Make a Will for Me?

By | Wills and Estates

It’s not uncommon to take the view that paying a Solicitor to write a Will for you is not a particularly important expense – particularly when you are on a limited budget. It makes sense really – a Will only comes into effect on death and once you are no longer here to deal with your estate, does it really matter? Why should I spend my money on something that won’t ultimately impact me? After all, there are cheap Will kits you can get from the newsagent or you can do some research online and come up with your own Will, right? You can do it when you are older and have more money.

Of course you can. But beware; as with most things, you get what you pay for. A professionally prepared Will and estate plan has countless benefits. It is common with Wills that any problems with it are not discovered until the time comes to administer the Will. It really does pay to plan ahead.

The challenges faced by family and friends who are required to administer homemade or poorly drafted Wills are real and costly to your estate. You might be surprised at the amount of money involved in sorting out very minor issues with Wills that have not been professionally prepared. Laws surrounding what constitutes a valid Will are very strict and non-compliance can result in your estate being burdened with thousands of dollars in legal fees and court costs. Small grammatical or drafting errors can turn into significant problems that you would have never seen coming.

When family and friends are grieving the loss of a loved one, the last thing they want to do is sort out complex legal issues involving a Will. Having a properly prepared Will can give your family and friends peace of mind and streamline the estate administration process so that it can be resolved in a timely and straightforward manner. For a small upfront cost, you get specialised legal advice and a Will suited to your individual circumstances.

McNamara & Associates have expert lawyers in Ipswich who are pleased to help with all of your estate planning needs. Our Ipswich and Springfield Offices offer simple Wills and Powers of Attorney for $350.00 including GST or $500.00 including GST if you book in to have both documents prepared.

hugh heffner

Hugh Hefner’s death: Could the Playmates qualify as ‘spouses’ to claim against the Will?

By | Wills and Estates

Playboy founder, Hugh Hefner, passed away this week, aged 91 years. He was well known for his development of a multimillion dollar empire of mansions, clubs, movies and television, often symbolised by bow-tied women in bunny costumes.

Hefner was married three times during his lifetime and had four children. Hefner remained married to his third wife, Crystal, a former Playmate, at the date of his death.

The big question now being asked is, who will inherit Hefner’s millions? It is rumoured that Crystal, his current wife, could be left with nothing after five years of marriage. It is believed that Hefner never added Crystal to his Will, despite their marriage in 2012.

Hugh’s death has the potential to result in many litigious battles. The first question to be asked is, what is the date of Hefner’s last Will? In Queensland, marriage revokes a Will. So by Crystal not being included in the Will, it would be irrelevant if the Will predated their marriage. By marrying Crystal the last Will would be revoked and, if no further Will was made by Hefner, his estate would be distributed based on the laws of intestacy, which would see Crystal being the main beneficiary of his estate.

If Hefner’s last Will was executed after his marriage to Crystal, then she would have standing to contest the Will as his spouse.

However, what we find most interesting is, given Hefner’s reputation with women, and given that a number of women lived in the Playboy Mansion with Hefner at any one time, the bigger question is – did Hefner die leaving more than one spouse!? It is possible for one person to have died with more than one spouse when it comes to Will and Estate laws. Any of the Playmates could potentially qualify as a ‘defacto’ spouse of Hefner given the relationships that existed in the house and the fact that Hefner resided with all of the Playmates. We are excited to see what distributions are made from Hefner’s estate and what legal claims are made.

We’ll leave you with one of Hefner’s very own quote’s when he was asked if he was going to have a bachelor party before his second wedding. Hefner’s response, “I’ve had a bachelor party for 30 years. Why do I need one now?”. A typical Hef comment!

Soaring Property Prices Fuel Inheritance Wars

Soaring Property Prices Fuel Inheritance Wars

By | Property, Wills and Estates

A recent national survey has revealed that approximately 1 in 4 Generation Y Australians are eagerly waiting on an inheritance to purchase a home.

The survey that asked 1000 people across Australia, found that over 26% of them were relying on a windfall to back them into a home purchase, thanks to the soaring house prices, particularly in capital cities.

Whilst these findings themselves are a worry, it also coincides with an increasing number of Australians who are in dispute with their brothers and sisters over an inheritance.

“We’ve certainly seen a rise in the numbers of people who are seeking legal intervention to resolve matters of who should get what in an estate, but it cannot be overstated that many of these claims that are commenced are legitimate.” McNamara & AssociatesRebekah Sanfuentes said.

“In other words, the reasons behind a person’s decision to dispute the estate is substantiated by the type of evidence that the courts stringently require. Evidence of financial need can be aptly demonstrated by the fact that many people are struggling to meet their living costs from their income and, even if they have been able to enter the property market, the equity they have is minimal. Mortgage stress and rising household debt are factors which will often weigh in favour of an increased legacy to a disappointed beneficiary.”

“There is little doubt that the exponential increase in property prices may well be an influencing factor, small or otherwise, in people considering exercising their legal rights in this manner.”

Brock Harm - Associate

2 minutes with Brock Harm – Associate

By | Criminal Law, Family Law, General Information, Wills and Estates

2 minutes with Brock Harm – Associate

What is something most people don’t know about you?

  – That I am the fourth child of the fourth child of the fourth child.  No pressure there!

If you were a superhero, who would you be?

  – Batman, he has the coolest gadgets and his own butler!

Are you a hunter or gatherer?

  – I would not survive as a caveman.  I have been described as the ultimate consumer.

What’s your morning ritual like?

  – Short.  I like to sleep in too much!

If you were mayor for the day, what would you change to your city?

  – I would give everyone free rates for the day! 

What is something you would do in life if you knew you would not fail?

  – Win the Masters in golf.

What is the craziest thing you’ve ever done?

  – Gone shopping with our receptionist, Renae, at Harbour Town.  The Tassie Devil has nothing on her!

If you could take any three people to dinner (dead or alive) who would you take and why?

  – JFK, he seemed like a very interesting man and someone who knew how to have a good time.  Peter Brock, an absolute hero of mine.  Billy Connolly to bring the humour.

Where do you like to go on a Friday night?

  – Fitys Fibber Magees.  A great pub with live bands.  What can go wrong? 

What is your drink of choice?

– Almost any beer.  I’m not fussy with beer.

Describe your first kiss.

– I was a terribly cute baby so I imagine that I got lots of kisses, but I can’t remember them.

how-can-a-will-be-contested

How can a Will be Contested?

By | Wills and Estates

There are various ways in which a Will can be contested. This article provides a summary of some of the most common reasons a claim against a deceased estate may be made.

To seek further provision

In the event that a person feels that the deceased failed to provide for them adequately under their Last Will and Testament, they can bring an application for further provision from the estate.

Such person must qualify as a spouse, child or dependant of the deceased to have standing to make such claim (based on Queensland estates. In other states of Australia the category of people who are able to bring such a claim varies).

 To argue that the deceased lacked testamentary capacity

A Will can be overturned on the basis that the will maker did not have the requisite capacity to be able to understand the content of the Will that they executed.

In the event that a person is successful in their application to overturn a Will based on the deceased’s lack of capacity, the deceased’s previous Will is then the Will that becomes the valid Last Will and Testament. If the deceased did not have a previous Will, then the laws of intestacy would apply.

To argue that the deceased was unduly influenced

A person can seek to overturn a Will on the basis that the deceased signed their Will in a situation where they were forced or pressured to do so. In certain situations, another person’s presence in the room when the deceased signed their Will can in itself be held to be undue influence.

To uphold a ‘deal’ or promise of the deceased

The deceased may have entered into contractual obligations with a person during their lifetime that is not consistent with the terms of the Last Will. A person can seek to enforce such contract or promise and in effect alter the terms of the deceased’s Last Will and Testament.

An example of such a claim would be when the deceased promises to leave a person specific property on their death in exchange for work or care during their lifetime.

McNamara & Associates have a team of Solicitors who practise exclusively in this area.

If you have lost a loved one and any of the above scenarios may apply to you, please do not hesitate to contact McNamara & Associates on 3816 9555 or by email to [email protected] to arrange a consultation to discuss.

 

 

Binding Nominations on Superannuation

Binding Nominations on Superannuation

By | Wills and Estates

The Importance of Binding Nominations on Superannuation and the Correct Terminology when Directing a Payment to the Estate

For many Australian’s, superannuation (including any attached death benefit) is the biggest asset they leave behind for their loved ones.  Equally, many people are unaware that without making a binding nomination on their superannuation, they simply do not know who will end up receiving such sum.

To put it simply, if you pass away without a binding nomination in place, the superannuation fund will determine the recipient of such funds.  This may not be consistent with your wishes.  Therefore it is critical that you take steps to ensure that you have a binding nominated beneficiary attached to your super policy.

In certain circumstances, a person has a preference for their superannuation to be paid to their estate so that the funds are distributed in accordance with the terms of the deceased’s Will.

The 2015 decision in Munro v Munro outlined the importance of using the correct terminology when directing a payment of superannuation to the estate.  In this case the deceased nominated the “Trustee of Deceased Estate” as the beneficiary of his superannuation benefit.

Her honour Mullins J found that the nomination was not valid because it did not nominate either the legal personal representative of the estate or a dependant.  The Trustee of a deceased estate is not the legal personal representative.

Often the terms ‘executor’, ‘legal personal representative’ and ‘trustee’ are used interchangeably however Munro v Munro demonstrates the importance of the accuracy required in this area.

 

Do not risk your superannuation death benefit, being potentially your greatest asset, ending up in the hands of someone you did not wish to benefit.

Contact us on 3816 9555 or by email at [email protected] to arrange an appointment with Rebekah Sanfuentes to ensure your superannuation will be paid to your intended beneficiary.

 

 

 

where do i store my will

Where do I store my Will so that it can be found on my death?

By | Wills and Estates

While having a Last Will and Testament is extremely important, if anything happened to your Will, or if your executor cannot find it, you may as well not have one.
The storage of your Will is just as important as the signing of one. You should make sure that your Will is stored in a safe place, and in a place that it can be easily located on your demise.
Once you have decided where you are storing your original Will, it is advisable to let your executor know where it is so that it is easily found on your death.

Should I store my Will in a safety deposit box at my bank?

It is not advisable to store your Will in a safety deposit box at a bank. On your death, the bank will generally require a certified copy of your original Will to confirm who is named as your executor before they are able to grant your executor access to your safety deposit box. This creates a problem if the Will that needs to be sighted is in your safety deposit box, as the box cannot be opened without the Will, and the Will cannot be obtained without the box being opened.

Can I just store my Will in a safe place at my home?

While you can store your Will anywhere you like, it is not recommended that you store your Will at your home. Storing your Will at home always comes with the risk that it could be lost, damaged or misplaced. Or it may never be found by your executor – it is very important that your Will can be found promptly on your demise.

Two estate matters that come to mind for me personally when thinking about Wills being stored at home and the risks associated with that are:-

a.) I had a client who stored her Will at her home, in her small safe. Only days before she passed away she was robbed……guess what was stolen? That’s right, her safe.

This in turn meant that her original Will had also been stolen. While she had been wise enough to provide a fully signed copy of her Will to her executor, the original was nonetheless missing. This resulted in legal expenses being incurred by the estate that would have been avoided had the Will been stored in a safer place.

b.) I administered an estate where the deceased had sadly passed away in a house fire. You don’t have to be Einstein to guess what else perished in that house fire……his original Will.

Safe to say, storing Wills at home, even in the safest of places, is still a risk.

Should I store my Will in a security packet at my Solicitors office?

Storing a Will at your Solicitors office is generally your safest option.

If a Solicitor writes your Will, they will usually store the original Will free of charge and will provide you with a copy. At McNamara & Associates we are also happy to store Wills that our firm did not prepare, still at no charge to you.

Solicitors should have facilities in place to ensure that your original Will is kept safe at all times. At McNamara & Associates we have a very large safe where all Wills are stored on behalf of our clients. Our safe is also fire resistant to prevent damage to your Will in the event of a fire.

There are also very strict rules with respect to original Wills. For example, you should NEVER attach other documents to the Will with staples, paperclips or anything else. This can raise questions about whether part of the Will is missing. Solicitors are aware of all the rules that come with storage of Wills and therefore are the most practical option when it comes to choosing where to store your Will.

If you have an original Will that you would like stored at our office, please contact us on 07 3816 9555 to arrange. Please note that McNamara & Associates do not charge a fee for such storage service.

Haggarty v Wood – Testamentary Contract and Undue Influence

Haggarty v Wood – Testamentary Contract and Undue Influence

By | Wills and Estates

The plaintiff in Haggarty v Wood sought to overturn various Wills executed by the deceased during his lifetime and also sought to overturn transfers of assets made by the deceased during his lifetime (inter vivos transactions).  Rebekah Sanfuentes, of McNamara & Associates Ipswich office, acted on behalf of the defendant to seek that the Plaintiff’s Statement of Claim be struck out.

Judgement was handed down on 29 November 2013 by Jackson J in the Queensland Supreme Court.  The defendant successfully applied to strike out the plaintiff’s Statement of Claim.

The decision discussed the requirements for the pleading of two types of claims that are often made against deceased estates: the allegation of a testamentary contract between the deceased and a third party, and, an allegation of a Will being executed under undue influence.

Haggarty v Wood – the facts

The background of Haggarty v Wood  is as follows:-

(a) The plaintiff claimed that the deceased had made an agreement during his lifetime with his predeceased wife that various parcels of land would be left to certain grandchildren in his Will;

(b) The deceased left the whole of his estate to his de facto, of whom he had met later in life, which was contrary to the agreement that was allegedly made with his former wife; and

(c) The deceased made various Wills over a six year period.  The plaintiff claimed that these Wills were all made as a result of undue influence.

Was there a Testamentary Contract?

Certain agreements that are made by a deceased with a third party, prior to their demise, are known as ‘testamentary contracts’. His Honour in Haggarty v Wood decided that the alleged testamentary contract did not have any consideration moving from one of the parties, and further, was not coupled with an agreement not to revoke the will. On this basis, the portion of the plaintiff’s claim which relied on the existence of a testamentary contract was struck out.

Was there Testamentary Undue Influence?

In Haggarty v Wood the plaintiff claimed that the defendant had unduly influenced the deceased when he executed various Wills. His Honour summarised that the test for testamentary undue influence is as follows:-

(a) Has the conduct in question overborne the will of the Will maker? and

(b) Has the Will maker consequently made their Will without intending and desiring to make the dispositions in it, to the point where the Will has not been freely and voluntarily made?

In Haggarty v Wood  the Court found that a claim of testamentary undue influence could not be sustained because it did not allege any material facts from which an inference of coercion/undue influence could be drawn.  Accordingly the plaintiff’s claim failed on both grounds. The plaintiff was required to amend his claim accordingly.

Has a promise been made to you that is not reflected in a Will? Do you suspect someone you love has been unduly influenced to make a Will?

If somebody has made a promise to you that is not reflected in their Will, or if you suspect that someone has been unduly influenced to make a Will, you may be able to claim against the estate. Please contact Rebekah Sanfuentes on 07 3816 9555 should you require assistance or advice in this regard.