Wills
Everyone knows what a will is. Not everyone
appreciates the responsibility of making a
comprehensive will or the skill, knowledge and
proper advice required for an effective will which
meets the individual needs and intentions of the
willmaker.
The responsible willmaker considers not only the
gifts to be made and the beneficiaries to be
included, but many other issues, especially ones
which will help to avoid difficulties that
beneficiaries may encounter, e.g. in times of
divorce or separation, in bankruptcy, in dealing
with taxation matters. See Estate Planning below.
And then there are the wills for special
circumstances. The law now allows wills to be drawn
for minors and people without mental capacity to be
authorised by the court. One example is the minor
who receives substantial compensation for personal
injuries. Rather than applying the law of intestacy
(i.e. dying without a will), an authorised will can
distribute an estate more fairly and more in line
with the intentions of the minor, or for a person
without mental capacity in line with his or her
probable intentions.
Murdoch Lawyers act in all will matters and in those
less common matters, such as authorised wills.
Will Disputes
“I want to contest a will”, a not unfamiliar cry,
can refer to various circumstances:
· The willmaker was not mentally capable of making a
will, or was forced by someone to make a will. An
application can be made to the court for a
declaration that the will is valid.
· A will does not give a share, or adequate share,
of an estate to a person. An application, called a
Family Provision application, can be made to the
court.
· A will may not have a clear meaning. An
application can be made to the court for a
declaration of its meaning, or for a rectification
of the wording.
· A document may not be in the strict format of a
will, but application can be made to the court for a
declaration that the document is a valid will where
there is evidence that the document expresses the
willmaker’s intentions for the disposing of the
estate.
Murdoch Lawyers will advise of the best course of
action. At times, court applications can be resolved
through mediation between the parties – we advise
our clients what is in their best interests. Time
limits are very important in these court matters,
and so no time should be lost in seeking advice.
Superannuation entitlements
It is not always known that the trustee of a
superannuation fund has the duty to distribute the
death benefits of a deceased member of the fund.
These entitlements, therefore, do not become part of
a deceased estate and are not distributed in
accordance with the terms of the will, unless the
superannuation trustee decides to pay the benefits
to the estate.
It is not unusual to find claims by people, who
expect to receive superannuation death benefits, or
a share in them, to be rejected by the
superannuation trustee. If claims are rejected,
legal advice should be sought.
Murdoch Lawyers assist clients who are aggrieved at
not being named as a recipient of a proposed
distribution of superannuation death benefits. Our
assistance includes representations to the
superannuation trustee and acting for the client at
the Superannuation Complaints Tribunal. Time limits
apply to such applications.
Superannuation issues also include the question of
whether a binding nomination is advisable in all the
circumstances of the client. A binding nomination
directs the superannuation trustee to distribute the
death benefit to a nominated beneficiary, which can
include the estate. Taxation implications need to be
addressed.
Estate Administration
An executor of a will has the responsibility to
administer the deceased estate. The administration
includes determining and protecting the property and
assets of the estate, and collecting and
distributing the assets of the estate in accordance
with the terms of the will. In engaging a lawyer in
the administration of the estate, the executor
relies on the skills and experience of the lawyer to
administer the estate in accordance with the
succession law and other relevant legislation.
An application for Probate of the will to the
Supreme Court is made for an order that the will is
valid and that the executor is validly appointed.
For estates without a will, application for
administration (Letters of Administration) is made
to the Supreme Court by an appropriate person, often
a principal beneficiary, who is appointed by the
Court as administrator.
Murdoch Lawyers act for executors and administrators
in all stages of the administration of a deceased
estate.