Wills and Estates Blog

Tuesday, March 14, 2017 - 3:43pm

He’s the son who sponged $280,000 off his aged Brisbane parents to prop up his struggling business then refused to pay it back. Read the article here.

Tuesday, March 14, 2017 - 3:27pm

More often now than ever before, people acquire property overseas.  Whether it is an intentional purchase or an inheritance from a family member or friend, such an acquisition can change the status quo when it comes to your Will and overall estate planning. 

Recently, the Supreme Court of Victoria had to determine whether the law in Victoria applied to an Australian citizen who lived permanently in the People’s Republic of China.  The gentleman in question had gained citizenship here in Australia in 1997, but had then moved back to China and had lived there as his permanent...

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Tuesday, March 14, 2017 - 3:17pm

Recently, the Supreme Court of Queensland [1] had to determine what a testator meant when he made his Will, using a pro forma Will, and gave these instructions: “All my worldly goods to my ex wife who will distribute it to my children as she sees fit.”

Understandably, the question for his family was what those words meant.  In particular, two questions arose: 

1. Do they gift the residue of the estate to the testator’s wife absolutely, or

2. Do they create a...

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Monday, March 13, 2017 - 4:19pm

It’s very simple, Brisbane elder abuse lawyer Charlie Young says. Families can’t just dump mum and dad in a rest home and have no further responsibility for their parents’ care and wellbeing.

Complaints about alleged neglect and mistreatment of elderly residents in a Bundaberg aged care facility have focused public attention on the standard of care given to residents and the legal comebacks should mistreatment be proven.

Charlie Young, a Senior Associate with Brisbane firm Bennett & Philp Lawyers and an elder abuse lawyer, said there were limited checks...

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Tuesday, February 28, 2017 - 12:16pm

If you’ve ever had a job, chances are you have superannuation.  You could even have life insurance packaged with your superannuation policy.  If you don’t know whether you do or not, this is a great time to check it.

Many people are quite surprised that they have a few hundred thousand dollars to allocate if they pass away.  The shock factor is likely brought about by the sheer fact that we generally don’t pay our superannuation ourselves; our employer does. It’s the sleeping giant of your estate plan.

Because, many people don’t know what kind of benefit their family will...

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Tuesday, February 28, 2017 - 10:58am

Confronting question, isn’t it?

If you were unconscious, even for a short time, what would happen? Who would pay your bills?  Who looks after your kids or pets?  Who looks after you?

It’s hard to appreciate the impact of such a situation when we’re healthy and life is good.  The difficulty is, however, that we never know when a tragedy can strike us, family or even friends.

Many people make a few assumptions about what happens when you are not able to manage your own affairs, or give instructions on your health care.  If you stop...

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Tuesday, February 28, 2017 - 10:49am

"Estate planning" as a phrase is a misnomer.  When people think of the word “estate” they likely picture magnificent mansions and in consideration of their non-existent mansion, they immediately disregard it as not relevant to them.

Every person has an “estate”.  Planning your estate is about planning for the inevitable or the tragic.  Whether it is death itself you consider inevitable or just passing control of assets to another, all good things must come to an end.

Estate planning is an all-encompassing phrase...

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Tuesday, February 28, 2017 - 10:15am

“By failing to prepare, you are preparing to fail.” This quote by Benjamin Franklin, whilst quite a thought-provoking phrase, has remarkable truth when it comes to estate planning.

A massive 41% of Australian’s do not have a valid will.[1]

From a practical perspective, this is a significant worry for any of the loved ones left behind to manage your affairs in the face of no guidance.

If you’re a particularly private person, stop for a moment to think,...

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Wednesday, August 24, 2016 - 5:37pm

The decision of Maisel v The National Mutual Life Association of Australasia Ltd [2016] QSC 166 was an unusual application arising out of very unfortunate circumstances.

In April 2016, Mr Maisel was piloting a helicopter which crashed into waters off the coast of Cape Tribulation in North Queensland. 

There was one passenger, who survived the accident. Mr Maisel’s body however was never recovered despite extensive searches. From all indications, Mr Maisel unfortunately did not survive but as his body was missing his death could not be confirmed. No death certificate...

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Thursday, May 26, 2016 - 3:02pm

It is a sad fact that our Elder Abuse Law team are having more and more people coming to us with concerns involving the abuse (often financial abuse) of an elderly loved one.

“Elder abuse” describes a range of types of financial exploitation, as well as neglect, physical or emotional abuse or even abandonment. It could involve theft of an elderly person’s assets, a person abusing their powers under a Power of Attorney, or even an elderly person being unduly influenced as to what is written into a Will. The examples are endless.

Thankfully, recognition of elder abuse is...

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Tuesday, May 17, 2016 - 6:41pm

Budget announcement: super funds will no longer be able to make anti-detriment payments.

Anti-detriment payments are additional payments made to deceased estates or dependents of a deceased super fund member. The anti-detriment payment can effectively result in a refund of a member’s lifetime superannuation contribution tax payments into an estate where the beneficiary is the dependent of the member.

The amount of the anti-detriment payment is the amount that the super fund could have paid if no tax was payable on the amounts included in assessable...

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Thursday, April 28, 2016 - 7:44pm

In the recent decision of In the Estate of Robert Edmonds [2016] SASC 41 the Supreme Court of South Australia determined that the deceased died ‘intestate’ (meaning, without a Will) in circumstances where he had a Will, but the original could not be found.

Robert Edmonds died in March 2016. A copy of a Will dated 1997 was located at his home by police officers, amongst a great volume of other personal paperwork.

The Will was prepared by Robert’s then solicitors and was originally held at their office on his behalf. However, the solicitor’s records showed that Robert...

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Thursday, April 28, 2016 - 7:42pm

In the recent decision of MPL [2016] QSC 61, the Supreme Court of Queensland has provided an important reminder of the relevant test to establish whether or not a person has testamentary capacity to make a Will and the importance of each limb of that test.

MPL is a 24 year old male who suffered a traumatic brain injury in 2012. As a result of the accident, he received a compensation payment in excess of $7 million.

In February 2016, he gave instructions to a solicitor to prepare a Will and he signed that Will.

MPL’s mother recognised that upon her son’s death, someone...

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Thursday, April 28, 2016 - 7:41pm

In the recent decision of Vickers v Pickering [2016] QDC 58, the Queensland District Court refused to grant summary dismissal of a family provision application brought out of time and in circumstances where the estate had been largely distributed.

In Vickers, the deceased died in December 2014 and was survived by four daughters. His Will appointed two of his daughters as joint executors and made provision for them, but did not make any provision for the other two.

In April 2015, the daughters who were not provided for gave notice to the executors of their intention to make a...

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Thursday, April 28, 2016 - 7:40pm

In the recent Western Australian case of Blyth v Wilken [2015] WASC 486, the Court was required to interpret the Will of a deceased person to determine if his former de facto spouse was entitled to receive a gift left to her.

The deceased’s Will stated:

“I give devise and bequest the rest and residue of my real and personal estate … upon trust for my de facto wife Kathrine Mary Murray absolutely …”

At the time the deceased made the Will, he and Ms Murray were de facto partners. However, they then separated in 2011, 3 years before the deceased’s death.

The...

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Thursday, April 28, 2016 - 7:39pm

In the recent decision of Carter v Brine (No 2) [2016] SASC 36, the Supreme Court of South Australia ordered that an applicant and beneficiaries involved in a complex estate challenge must pay their own legal costs of the dispute, instead of having their costs paid by the estate or an opposing party.

In Brine (No 1), the deceased’s de facto spouse made various claims against the deceased’s estate in relation to interests in property and to receive increased provision. The beneficiaries of the estate were heavily involved in and defended the claim made by her.

Ultimately, the...

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Thursday, April 28, 2016 - 7:37pm

In the recent decision of Hoskin [2016] QSC 31, the Queensland Supreme Court was faced with the unique task of determining the proper distribution of the estate of a person whose identity could not be confirmed.

Phyllis Hoskin died in 2009. She had no spouse or children and did not leave a Will. The Public Trustee was appointed as the administrator of her estate and had the task of distributing her $1.2 million assets to her next of kin, in accordance with the rules of intestacy.

Phyllis had been raised by and known as the daughter of Aaron and Margaret Hoskin. However,...

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Thursday, April 28, 2016 - 7:35pm

The recent Queensland Court of Appeal decision of Abrahams v Abrahams [2015] QCA 286 has highlighted the uncertainty and difficulties for an applicant when making an application for further provision against a deceased estate.

In Abrahams, a claim for further provision was made in the District Court by the Public Trustee on behalf of the deceased’s disabled son (“the Son”), who had severe down syndrome and had not been left any gift in his father’s Will.

The parties (being the executor and the Public Trustee) reached an out of Court settlement and agreed that the disabled...

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Thursday, April 28, 2016 - 7:34pm

All adults should prepare a Will to ensure that their assets pass to the people they choose when they die. If a person dies without a Will, their estate must be dealt with according to the ‘laws of intestacy’. Those laws are very strict and will not always be in accordance with a person’s wishes, leading to unfair outcomes.

A person can only make a Will if they have the necessary capacity to do so, which can be assessed by a solicitor. If, for example, a person has a cognitive disability or has suffered a brain injury, they may not have the necessary capacity to make a Will. This...

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Thursday, April 28, 2016 - 7:30pm

In the decision of Brine v Carter [2015] SASC 205, the South Australian Supreme Court has ruled that the obligation of Administrators to claim superannuation and death benefit entitlements for the benefit of the estate (which was established in McIntosh v McIntosh [2014] QSC 99) applies equally to executors appointed under a Will.

The deceased in Brine was survived by three children and a de facto, whom he appointed as executors of his estate. He had two superannuation benefits exceeding $630,000: an indexed pension annuity, which he nominated his de facto spouse to receive, and a...

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Thursday, December 3, 2015 - 1:11pm

The Queensland Court of Appeal has confirmed that a Will made by Mr and Mrs Masci was a ‘mutual Will’, ensuring that each of the couple’s children from previous marriages will share in an equal portion of their estates.

Mr and Mrs Masci married in 1984 and each had children from a previous marriage. They did not have any children together. In 2006, they prepared a joint Will at home, which stated:

...

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Thursday, November 26, 2015 - 10:58am

The Will of Mr Kipritidis, who passed away in 2013, gifted his entire estate (worth around $1.85 million) to the Community Party of Australia.

Mr Kipritidis had suffered from chronic schizophrenia at the time he made the Will.

In Briton v Kipritidis [2015] NSWSC 1499, Mr Kipritidis’ cousins (who would inherit his estate if the Will was not valid) contested the Will on grounds that Mr Kipritidis lacked the necessary mental capacity to make it.

Despite Mr Kipritidis’ mental illness, the Court held that he was able to act rationally in some aspects of his life and...

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Thursday, November 26, 2015 - 10:30am

Applications to the Court in relation to informal Wills (being documents that do not comply with the necessary requirements to be a valid Will) are on the rise and becoming increasingly contested. Recently, the Queensland Court of Appeal considered an application for approval of an informal Will for the first time, in Lindsay v McGrath [2015] QCA 206.

In that decision, the Queensland Court of Appeal determined that an informal document written by the deceased which stated “… for the purpose of making...

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Tuesday, October 13, 2015 - 10:30am

The Queensland Supreme Court recently decided that an ex-wife was not entitled to any provision from her ex-husband’s estate, even though she did not receive any matrimonial property settlement or maintenance from her ex-husband after their divorce and was in extreme financial hardship.

In Queensland, a deceased person’s “dependent former husband or wife or registered partner” is eligible to apply for provision from their ex-spouse’s estate if, at the time of the deceased’s death, they:

  • were divorced from the deceased person;
  • had not...
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Monday, June 22, 2015 - 1:17pm

The wife of Australian, Pater Maynard, who went missing in Bali on a solo surfing holiday in August 2014, has recently been granted letters of administration to deal with his estate by the Queensland Supreme Court.

Ordinarily, the Court requires a death certificate to prove a person’s death before granting probate or letters of administration. However, where a missing person is never found, a death certificate cannot be issued.

To deal with this issue, there is a presumption of death where a person has been missing for at least seven years. Also, someone (usually a...

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Tuesday, June 2, 2015 - 7:50am

Facebook has recently introduced new policies and procedures regarding memorialisation and management of accounts after death.

Any user over 18 years of age can now elect for their account to be deleted upon notification of their death or nominate a ‘legacy contact’ to manage their account after they die.

A legacy contact can:

  • Write a post for your profile after your death (for example, to share a final message or notify your contacts of any memorial service);
  • Respond to new friend requests;
  • Update your profile picture and...
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Thursday, May 28, 2015 - 3:50pm

PUBLISHED: Sydney Morning Herald

Ex-politician, Neville Wran, died last year, leaving a fortune of approximately $40 million. His 68 year-old adopted son is now making a claim for further provision against the estate in New South Wales.

The executors of the estate claim that although Neville had amassed a fortune of up to $40 million, only about $500,000...

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Thursday, April 30, 2015 - 12:05pm

In the recent decision of Hayes v Hayes [2015] QSC 88, the Supreme Court of Queensland determined that moneys contributed by the deceased towards the building of his daughter’s home were advanced by way of gift and were not a loan.

As a result, the deceased had no beneficial interest in his daughter’s property and it did not form part of his estate for the purposes of a family provision application by his son.

Read our full case note regarding this matter...

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Tuesday, April 21, 2015 - 1:40pm

In the recent decision of Brown v Guss (No 2) [2015] VSC 57, the Supreme Court of Victoria ordered an applicant who was unsuccessful in challenging a Will and his solicitor to pay the estate’s costs of the proceedings on the indemnity basis.

This case is a sharp reminder of the importance to seek appropriate legal advice regarding the prospects of any claim before commencing Court proceedings, especially where there are allegations of fraud or dishonesty.

Read our full case note regarding this matter...

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Monday, April 20, 2015 - 2:40pm

In the recent decision of Re W, DJ [2015] SASC 45, the Supreme Court of South Australia agreed that a Statutory Will should be made for DJW, but refused to make it in the terms agreed between his parents.

This case demonstrates the very serious nature of these applications and the Court’s attitude towards them. Ultimately, the Court must consider all of the relevant facts and circumstances and reach a decision according to Law, as opposed to the views of or any agreement reached between the parties.

Read our full case note regarding this matter...

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Thursday, April 16, 2015 - 11:07am

In the recent decision of Munro v Munro [2015] QSC 61, the Queensland Supreme Court held that a superannuation death benefit nomination that Mr Munro (the deceased) intended to be binding on the trustee of his self managed superannuation fund (to ensure that his superannuation death benefit was paid to his estate after his death) was not actually binding.

The effect of this decision is that Mr Munro’s second wife is able to pay all of his superannuation death benefits to herself, instead of the benefits being shared between her and Mr Munro’s daughters from...

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Wednesday, April 15, 2015 - 10:45am

The families of two daughters swapped at birth have recently been awarded $2.7 million in compensation by a French court.

The children were swapped immediately after their birth in July 1994, but the error was not discovered until some 10 years later and the law suit was eventually brought in 2010. The parents have not encouraged or maintained any relationship with their biological daughters since the discovery was made.

This case raises some interesting family and estate planning issues and particularly, whether or not the parents should legally/...

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Wednesday, April 15, 2015 - 10:42am

A highly unusual decision has recently been made by a Court in Utah (USA) in which the Court decided that a wife is able to sue herself for the wrongful death of her husband.

Ms Bagley was driving when she and her husband were involved in a car accident that lead to his death. Following her husband’s death, Ms Bagley was appointed as his ‘legal personal representative’ to deal with his estate and affairs.

Ms Bagley then discovered that if she (as personal representative of her husband’s Estate) successfully sued herself (as the negligent driver) for...

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Friday, March 13, 2015 - 7:02pm

Sweeping Federal Government cuts to charities means fundraising pressure may lead to them fighting in the courts to keep will bequests in contested will cases.

Media reports state that hundreds of charities and social service providers across Australia face the prospect of closing after they were told they no longer qualified for Federal Government funding would force the charities to pursue every fundraising measure possible. -...

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Saturday, March 7, 2015 - 12:00am

In the recent decision of Re Veca [2015] VSC 74, the Supreme Court of Victoria refused to allow any amount of an unsuccessful applicant’s costs of challenging a Will to be paid by the estate, despite the executors of the estate agreeing to pay part of them.

This decision demonstrates the importance for all potential applicants to carefully consider their prospects before commencing any challenge to probate or a Will and to never assume that their costs will be paid by the estate.

Read our full case note regarding this matter...

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Monday, March 2, 2015 - 12:00am

Last week, the Supreme Court of Western Australia awarded a monumental sum of $25 million to the daughter of mining magnet, Michael Wright, following a challenge to his Will.

This is the largest family provision award in Australian history and many have questioned whether it is reasonable or excessive in the circumstances.

Read our full case note regarding this matter here

For more information regarding estate disputes or to...

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Saturday, December 13, 2014 - 12:00am

In the recent decision of Burge v Burge [2014] NSW 1772, the New South Wales Supreme Court resolved a dispute between the deceased’s surviving spouse and son regarding which of two documents should properly be considered as the deceased’s last valid Will.

The first document was in favour of the deceased’s wife and the second, which contained several handwritten notations and amendments, was in favour of his son.

The Court ultimately ruled in favour of the wife because it was not satisfied that the second document met the requirements of a valid Will....

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Sunday, November 30, 2014 - 12:00am

In the recent decision of Eatts v Gundy [2014] QCA 309 the Queensland Court of Appeal held that a person’s child within the meaning of Aboriginal custom or tradition is not a ‘child’ of that person for the purposes of Queensland intestacy law or family provision.

This case serves as an important reminder for any persons living in blended families to seek proper advice about their options and how best to provide for all of their loved ones when they die.

Read our full case note regarding this matter...

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Wednesday, November 5, 2014 - 12:00am

In a recent decision, the Beenleigh Magistrates Court ordered Alex Gow Funerals to honour its 64 year-old agreement with Mrs Turner (deceased) and was denied them the right to recover any further costs of her funeral, which cost $1,000s more than the contributions made by her.

This decision will will affect and may benefit thousands of Queenslanders and Australians and their families who have purchased a prepaid funeral plan in the past.

Read more about this decision...

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Thursday, March 20, 2014 - 12:00am

In the recent decision of Darveniza [2014] QSC 37, the Queensland Supreme Court awarded a record $3 million to the deceased’s son, being the highest amount ever awarded in a family provision claim in Queensland.

This decision is a timely reminder of the importance of proper estate planning, especially for large or blended families, and...

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