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.
Estate Planning
How can I ensure that my assets are managed and protected, and so eventually pass
to my spouse, children, family members or friends in the most effective way?
It is self-evident that the prudent person takes the time to consider that question,
and then the time to do something about it.
Murdoch Lawyers assist many people to answer that question in the context of their
own situation:
The team at Murdoch Lawyers has the extensive experience and expertise to assist
you in a thorough and careful planning process which will meet your requirements.