03/07/2020
What is a Statutory Will?
Australia has an ageing population and there are an increasing number of people living longer with cognitive conditions, such as dementia. Legal issues posed by this have led to many developments in the law, one being the use of Statutory Wills. A Statutory Will is a Will made by the courts on behalf of a person who lacks testamentary capacity. The courts can also revoke or amend current Wills.
What is testamentary capacity?
It is a prerequisite for anyone making a Will to have testamentary capacity, which is assessed by the solicitor taking instructions to prepare the Will.
For someone to have testamentary capacity, they:
- Must be aware, and appreciate, the significance of the act in the law of making a Will;
- Must be aware, at least in general terms, of the nature, and extent, and value, of the estate over which the testator owns or over which the testator has power and authority;
- Must be aware of those who might reasonably be thought to have a claim upon the testator and the testator’s assets, and the basis for, and nature of, the claims of such persons; and
- Must have the ability to evaluate and discriminate between the respective strengths of the claims of such person.
Medical clearance (such as a report from a GP) is sometimes required if there is a question of testamentary capacity and this can be arranged by a solicitor.
No testamentary capacity
There a number of circumstances where a person may not have testamentary capacity including where they are under the age of 18, have intellectual disabilities or suffer from a cognitive condition such as dementia. In such cases, it is unlikely that they will have testamentary capacity and so are unable to make a Will.
This can become an issue where:
- a past Will no longer reflects the person’s wishes, or family circumstances,
- there has never been a Will, but the Estate is significant, or
- it is unfair for the Estate to be distributed according to the laws of intestacy.
How to apply for a Statutory Will?
An application to the court for a Statutory Will can be made a person who has a relationship to the person – such as a spouse, a parent, a relative or an administrator appointed by QCAT. The process can be complex and it is always advisable to speak with an experienced legal professional regarding Estate planning.
Our experienced Wills and Estates team can provide you with advice and guidance with all your Estate Planning needs. Get in touch to make an appointment.
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
01/07/2020
Binding Death Benefit Nomination
Superannuation can be a significant asset for many people and for some, it represents the larger part of their Estate. However, superannuation benefits don’t automatically flow to your Estate when you die. They are instead are distributed by the Trustee of the superannuation fund based on the rules of the fund and the relevant superannuation law.
While this is the case, you can make your wishes clear to the Trustee by making a binding death benefit nomination.
What is a binding death benefit nomination?
A binding death benefit nomination (BDBN) binds the Trustee of your super fund to pay your superannuation benefits to the beneficiaries you nominate when you die. In making a BDBN, you nominate the beneficiaries and the percentage you would like them to receive. While the rules differ from fund to fund, you can usually nominate:
- your spouse,
- children, and
- your personal legal representative (the executor of your Will or administrator of your Estate) to distribute as per your Will.
Depending on your super fund, BDBN’s can be lapsing or non-lapsing. Lapsing nominations usually expire after three years and need to be remade to be valid.
Why should you make a BDBN?
A BDBN makes your wishes clear and a payment from the superannuation fund to your beneficiaries can be expedited because of this. A BDBN can provide some peace of mind knowing your loved ones will be looked after once you are gone.
BDBN’s are also particularly useful in modern family dynamics where there may be multiple parties who can make a claim on your Estate or where there has been family conflict.
When should you make a BDBN?
You should review your BDBN regularly to ensure it meets your current needs. Like your Will, it is particularly important to review your nomination if:
- you get married or divorced, or enter or leave a defacto relationship,
- your family changes, for example with the introduction of children or grandchildren, and
- one of your nominated beneficiaries dies.
If your nomination in your super fund lapses every three years, you should diarise the date it lapses and review it each time.
There are legal and tax implications that can arise from making a BDBN and it is important to understand these before you make one. Our experienced Wills and Estates team can provide advice on BDBN’s. Get in touch to make an appointment.
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon
28/05/2020
Digital accounts: what happens after you die?
| In our previous post, we covered what happens to your social media accounts after you die. This time, we explore what happens with your Google & Apple accounts and how you can clarify your wishes when it comes to your digital identity.
As with Facebook, Google allows you to make provisions for what is to happen to your account upon your death, before the time comes. The settings can be accessed in the Google Account Help Centre. AppleApple is a different kettle of fish. According to their terms and conditions, Apple will not transfer your account to any other person and any rights to your content terminate upon your death, unless Apple is provided with a Court Order saying otherwise. If Apple receives a copy of a death certificate for a loved one, they may delete the account and all content within it. So what can you do?Leaving passwords written down in the care of others is not a surefire way of passing on your digital estate, not only because of the need to update passwords, but also because you may be breaching the terms and conditions of a service by sharing your password with another person. If the service provider finds out that another person is accessing your account, they could ban that person and remove the account for breaching their terms and conditions of use. Your general wishes regarding what should happen with your digital identity can be captured by specific bequests in your Will. If you’d like to update your Will, please don’t hesitate to contact a member of our friendly team.
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon |
20/05/2020
Social media: what happens after you die?
| Dealing with the social media accounts of a loved one after they pass can be a daunting and confusing process. More people will need to face this challenge into the future, so we ask: ever wondered what will happen to your social media accounts after you die?
There are a few options regarding what will happen to your Facebook account should you pass away. You can elect to have it permanently deleted upon your death or you can add a legacy contact that will look after your account. Both options can be accessed in the Facebook Help Centre settings, or you can read more here. Regarding your Instagram account, you can’t add a legacy contact and instead an immediate family member or representative authorised to act on behalf of your Estate needs to fill in a removal request form in the Instagram Help Centre. This will require providing relevant documentation to have the account removed. You can read more here. LinkedIn and TwitterBoth LinkedIn and Twitter accounts are similar, with a verified family member or a person authorised to act on behalf of the Estate needing to contact each platform personally to arrange the deactivation of these accounts. Twitter now also has a form submission option in the Twitter Help Centre. Your wishes as to what will happen to your social media accounts in the event of your death can be captured in your Will, reducing the burden on your loved ones and ensuring accounts are dealt with according to your wishes. If you’d like to update your Will, please don’t hesitate to make an appointment with our team. *The legal information in this article is of a general nature only and not intended to be legal advice to rely upon |
06/05/2020
Executing your Will during COVID-19
| One impact of the COVID-19 pandemic is that many people have prioritised making or reviewing their current Will. Formalising your wishes in a Will can understandably put anxious minds at ease and it’s no surprise that there has been a recent surge in this area.
There are some hard and fast legal rules surrounding the making of a Will. We cover off on the execution requirements for Wills and your options during COVID-19. Your Will must be executed in the presence of two independent witnessesWith social distancing, this might be a big ask but it is a requirement for a Will to be considered formal. Failure to execute your Will formally may mean your Executor has to apply to the Supreme Court to have your Will declared valid. It is always recommended that you prepare your Will in the correct way. What if I am in quarantine?If you are under self-imposed or government mandated quarantine and cannot access two independent witnesses, there are new rules for executing your Will applying between 1 March 2020 and 30 September 2020. You may be able to execute your Will in the presence of two independent witnesses by way of video conference, provided you fulfil a range of other requirements. Many legal professionals are already offering flexible solutions for the execution of documents and these new rules will enable them to provide services as a last resort, where physical attendance is not possible. Preparing your Will in the correct way with the help of an experienced legal professional can save time, money and headaches for your loved ones down the track. If you’d like to get in contact with us to make or amend your Will or ask us a question about executing your Will during COVID-19, contact our friendly Wills and Estates team or you can start the process online. *The legal information in this article is of a general nature only and not intended to be legal advice to rely upon |
29/04/2020
Verification of identity during COVID-19
| This week in Keeping it Legal, we want to discuss formal identification (ID) requirements in the time of COVID-19.
For many legal processes, such as writing your Will or purchasing a property, there is a verification of identity process that must be followed, usually requiring your lawyer to physically view two forms of your photo identification. Your ability to provide ID may be impacted if you are under self-imposed or government mandated quarantine and there are ways that the legal profession is adapting, including the use of drive-through verification of identity stations and digital technology. Be prepared to supply your ID in new ways during this time. We’ve had to adapt in other ways to provide the service and support you expect from us:
Contact our friendly team to find out more. We want to assure our community that we are open and ready to help you during COVID-19. *The legal information in this article is of a general nature only and not intended to be legal advice to rely upon |
18/12/2019
Documented gifts and loans can save family disputes
THERE have always been loans and gifts between family members, often between a parent and a child or children.
These payments are rarely documented and the intention of each party is often not clear. This can lead to significant family concern and dispute, both before a person dies and with their Will.
For example, a parent may think of it as a loan and the child, a gift. It is important that whatever the payment is it should be documented and clear and understood by both parties.
If it is a loan, what are the terms of repayment and is there any interest and in what circumstances? Is the loan forgiven on death or is it to be paid from that child’s share of the parent’s estate? Are there enough assets or the correct type of assets to allow the loan to be offset?
These gifts and loans have always been common family arrangements but they are becoming more important because the amounts involved are greater and there is a higher tendency for family members to dispute Wills.
The law in relation to loans and gifts is complicated and it will sometimes be assumed that a payment from a parent to a child is a gift unless there is some evidence to the contrary. If it is a loan or a gift, what happens with other children or family members? Are there similar loans or gifts to them? Is there any adjustment in the Will?
It is important that whatever the payment is, it is correctly documented and signed by both parties to include any terms of payment or interest. The Will of the person paying the money should also be updated to make it clear if any such loan is forgiven on death or is it to be offset against that child’s share of the estate and against what assets.
A level of family disputes and distress can be greatly reduced by these simple measures.
Until next week – Keep it Legal!
Gerard Pender
gpender@walkerpender.com.au
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon
03/12/2019
Overseas assets and travel highlight the need for an Enduring power of attorney
EVERY adult should have a current enduring power of attorney.
Most do not and while older people are now making powers of attorney, we are obviously all prone to accidents, illness or injury regardless of our age.
The situation becomes more complicated if people have assets in different countries or live or spend significant time in more than one country. Sometimes it is advisable to have a power of attorney in each country which you spend significant time or have significant assets in.
As our society lives longer with more assets and more complex families, the importance of powers of attorney has become far greater. Many of us are remarrying or are re-partnering in older age which complicates whom we appoint to make decisions for us and when.
Our attorneys can make most decisions we could make for ourselves but not all.
Many of us are travelling extensively and living for longer periods away from home. Do you want your attorney to be able to make financial decisions for you from the date of the document, including decisions if we are absent or uncontactable? If so, then this can make your power of attorney more flexible.
As we age, it can also be an advantage that your attorney can make financial decisions from the date of the documents to assist us if we become more frail and if decision making becomes more difficult for us.
Many clients are now including additional powers in the powers of attorney allowing their attorneys to make “conflict of interest decisions”, decisions in relation to extending superannuation nominations, and many other matters. What other provisions should be in your power of attorney? Is your power of attorney up to date?
Until next week – Keep it Legal!
Gerard Pender
gpender@walkerpender.com.au
*The legal information in this article if of a general nature only and not intended to be legal advice to rely upon
26/11/2019
Consider overseas assets when making a Will
PEOPLE usually understand the importance of having a Will although statistics say that most Australians don’t have one.
If you don’t have a Will then the finalisation of your estate and affairs will inevitably be more expensive, complicated and uncertain. The issue becomes even greater when people have overseas assets.
There is an increasing number of Australians who have family, investments or property overseas. Different countries have very different laws in relation to Wills and inheritance which reflect their histories and culture. Many European countries, for instance, have laws which automatically determine how some property is divided on death and a Will can play a lesser part in someone’s affairs.
It’s important to establish where a person lived or was “domiciled” at the time of their death as this may determine in part the laws of which country apply. In addition, what are called “immovables’’e.g. real property is often governed by the law of where the property was located whereas “movables” e.g. bank accounts are governed by the law in the country or state where the person lived or was domiciled.
It is also necessary to determine whether a person should have one Will covering assets in all countries or multiple Wills in multiple countries and this can only be determined by looking at the nature of the assets held by that person, where they live or are domiciled, and the laws of each country.
Sometimes it is easier when you are administering an estate, to have a separate Will in each country where the assets are located. Costs and administration complications can be less.
Anyone with assets or inheritances in more than one country needs to think about their Will and its provisions. They should also consider an EPOA.
Until next week – Keep it Legal
Gerard Pender
gpender@walkerpender.com.au
*The legal information in this article if of a general nature only and not intended to be legal advice to rely upon.
23/05/2019
The Advanced Health Directive
IN THE past two weeks I have looked at General Powers of Attorney and Enduring Powers of Attorney.
Both are formal documents that give another person the authority to make decisions on your behalf. Out of the two, only the Enduring Power of Attorney can provide power to make decisions about personal and health matters.
But what about if you want to confirm your end of life decisions about your health care before you actually lose the capacity to do so?
This brings us to this week’s topic – the Advance Health Directive (“AHD”).
The AHD is also a formal document and can be made by any person over the age of 18 and who has the capacity to make decisions. The AHD sets out the treatment you want (or don’t want), can appoint someone to deal with medical and health matters and provides health care professionals and others with information they need (such as specific medical information, cultural beliefs, allergies etc.). It applies if you are incapacitated and unable to make decisions and are in the final stages of life.
The instructions that you include in the AHD regarding your medical treatment can be general in nature or very specific.
If you change your mind about what is in your AHD it can be changed (provided you retain the capacity to do so) – just like you change your Will when circumstances change.
Unfortunately, accidents and illness can strike at any time and so the best time to prepare an AHD is now – before anything happens.
If you need any advice on preparing or changing an AHD, get in touch with Walker Pender Group Lawyers.
Until next week – Keep it Legal!
Katie Caldow
kcaldow@walkerpender.com.au
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
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