Wills 

Brief details regarding:

• you
• your family situation
• your financial situation (assets and debts)
• your proposed executors
• your proposed beneficiaries.

To assist you in this process, we can provide a questionnaire setting out the information we require to prepare your Will.

Regularly.

You should review your Will at least every 5 years or so to check that the Will contains your current wishes and reflects your current family and financial situation. You should also review your Will when any financial or family circumstances change, for example:

• a marriage breakdown or separation in the family
• the sale of your business or entry into a new business venture
• the birth of children or grandchildren
• the possible bankruptcy or other financial problems of yourself or of a child
• the establishment of a family trust.

There are a number of grounds on which a person can “contest” a Will, including:

• the Will-maker lacked the required mental capacity at the time of executing the Will
• someone exerted “undue influence” over the Will-maker, so that the Will-maker lacked a free disposing mind at the time of making the Will
• the Will-maker did not make any or adequate provision for a person.

For such claims to be successful:

• the Will-maker must have owed an obligation to the claimant to make some provision, and
• the claimant must have a financial need.
• At this time there has been no successful claim by a nephew or niece against an aunt or uncle’s estate. By way of contrast, claims by children against a parent’s estate are more often successful as (apart from the claimant child having to demonstrate a financial need) the parent-child relationship is the most obvious situation where the claimant can show that the Will-maker had an obligation to make provision for the claimant.

Not usually. Most large industry Superannuation Funds have discretion to decide to whom your superannuation benefits are paid after your death, and can pay those benefits direct to one or a combination of your spouse, dependants or to your legal personal representatives (the executors of your Will, or the administrators of your estate). This means that your superannuation entitlements may be paid out after your death without reference to your Will.

Some Superannuation Funds do allow their members to complete "binding death benefit nominations" which "lock in" who is to receive your superannuation benefits. With respect to binding death benefit:

• the only persons who can be nominated to receive your superannuation entitlements are your spouse, dependants or your legal personal representatives;
• the nomination lapses after 3 years, meaning that the nomination must be renewed or reviewed at least every 3 years.
• The Trustee is bound by a binding nomination.

If your Fund does not permit its members to make binding death benefit nominations, you may nevertheless be able to indicate your preferred beneficiary. This is a non-binding nomination, which gives the Trustee an indication of the preferred distribution of any death benefit. A Trustee will usually take this nomination into account in making its decision about the distribution of any death benefit, but it is not binding on the Trustee. Upon your death the trustees of the Fund will decide how your superannuation benefits will be split between your spouse, dependants or your legal personal representatives.

If superannuation benefits are paid to the executors of your Will, those benefits will pass in accordance with your Will.

You must:
ask your Superannuation Fund if you can make a binding death benefit nomination and, if you can and wish to, correctly complete the forms that your Fund will send to you; and even if you cannot make a binding death benefit nomination, regularly review who (if anyone) you have nominated as your preferred beneficiary to receive your superannuation monies.

Yes. A beneficiary can be an executor. There is no reason why your children should not be executors, but in deciding which of your children will act as executors you should bear in mind that choosing one or more children rather than all of your children can be distressing to the children who are not chosen.

In choosing executors you should also remember:

• the maximum number of executors is four
• persons under the age of 18 years cannot act as executor
• it is not sensible to appoint as executor someone who lives interstate or who is in bad health
• the different skills (eg. instructing solicitors, completing paperwork, etc) that the executors must have to deal with your estate.

Any trust-type structure set up by a Will is called a “testamentary trust”. As testamentary trusts only take effect after your death, they differ from other kinds of trusts (eg. Family Trusts) set up during your lifetime.

The form of “testamentary trust” that is commonly referred to by accountants and financial planners relates to a particular type of trust where (usually) a child of the Will-maker can nominate that the child’s share of the estate is held in a trust (rather than passing directly to that child), so that income can be allocated to that child and the child’s family with subsequent savings in income tax.

It depends on the nature of the claimant’s case:

save for special circumstances, a claim that the Will-maker lacked capacity or a claim that the Will-maker was under undue influence should be made before an application is made for a grant of Probate of the Will;

or

a claim for provision or further provision out of the estate the claim must be made before the expiration of six months after the date of the grant of Probate of the Will.

The first thing to do is to get a copy of your father’s Will, to confirm that you are a beneficiary. Legislation in Victoria allows a beneficiary named in the Will to inspect the Will, and also allows you to make a copy of the Will.

There is no fixed time period within which the executor has to deal with estate assets.

Assuming that the executor refuses to tell you what is happening in your father’s estate, you should arrange for your solicitor to write to the executor, requesting an explanation for the delay in dealing with your father’s estate. This approach is usually successful in prompting an executor to take action to administer an estate.

If you believe that the executor has taken steps to deal with estate assets, your solicitor can arrange for searches to be undertaken at the Titles Office and/or at the Supreme Court of Victoria. These searches will reveal what progress, if any, has been made in administering your father’s estate.

As a last resort, an application can be made to the Supreme Court of Victoria, requiring the executor to appear before the Court to explain the delay in administering your father’s estate.

Your mother may revoke the appointment of your sister as attorney at any time, if your mother has legal capacity.

If your mother no longer has legal capacity (e.g. dementia), you can apply to the Guardianship List of the Victorian Civil & Administrative Tribunal (VCAT) to revoke the appointment of your sister as your mother’s attorney.

Such an application to VCAT would list the actions taken by your sister as attorney, and explain why those actions were not in your mother’s best interests. To support such an application, documentary evidence of any inappropriate actions taken by your sister must also be submitted to VCAT.

At the same time as reviewing the total estate and Will procedures, consideration should also be given to situations which may occur prior to your death (when the Will is activated) including:

• Enduring Power of Attorney - providing for the smooth financial operation of a person’s affairs when they can no longer do so themselves (due to dementia or other mental incapacity), or if travelling overseas.
• Enduring Power of Attorney for Medical Treatment
• Enduring Power of Guardianship