Wills & Estates

28 Jun

Posted at 11:46h in Wills & Estates

When preparing a Will, confusion often arises when considering whether to also prepare an Advance Care Directive (ACD) or a Power of Attorney (POA). Each of these documents serves a separate yet equally significant purpose, and are important to have in place for the security that each provide.            A POA is useful in situations where you still have capacity (essentially the ability to understand what you are doing) but are otherwise unable to act for yourself, for example if you are overseas or are in hospital. It gives another person, your Attorney or ‘donee’, the authority to deal with your affairs such as purchasing property or operating your bank account. Nominating an Attorney does not mean you lose control of your affairs, and you can always limit their authority. It is important to have a valid and up-to-date POA document in place to ensure that a Court does not appoint someone to look after your affairs if you ever become incapacitated. If you wish your POA to continue despite your loss of capacity, you need an Enduring Power of Attorney (EPOA).           Alternatively, an ACD allows you to appoint another person to make decisions about your health care and welfare in the event that you become unable to make those decisions in...

29 Mar

Posted at 15:47h in Wills & Estates

For many, preparing a Will can be a daunting task. There are often concerns about the time involved or even thinking about death. However, given the rising number of inheritance disputes, having a professionally drafted Will is more critical than ever. Your Will ensures that your assets are distributed in accordance with your wishes. Take for example a couple who have been dating on-and-off again for 3 years but then the relationship ended. The law may conclude on the facts that they were in a de facto relationship for a time. As such, even though the relationship ended, the surviving individual may claim against the family and the estate will be in litigation for sometimes several years. DIY Will kits are relatively inexpensive to purchase. However the money you save upfront can be far outweighed by the issues faced by your loved ones upon your passing. If errors are made within the document, including whether the strict witnessing rules are adhered to, then the document could be deemed invalid. DIY Will kits are unable to provide you with options and guidance regarding complex situations including blended families, trusts or self-managed super funds. Neglecting to attain expert advice could leave your assets vulnerable to unnecessary tax and prolong the grant of probate.  Making sure your...

13 Aug

Posted at 11:18h in General, Wills & Estates

What is death literacy? It is the practical know-how needed to plan well for the end of life. This may sound strange, but it is an important issue as 75% of Australians have not had end of life discussions. As the number of Australians aged 65 and over doubles by 2050, improving our death literacy is even more important. Dying to Know Day was last week on the 8th of August and was the sixth annual ‘Dying to Know Day’ aimed at encouraging Australians to discuss death and make appropriate arrangements for when you pass away. Preparing for the end of a life may seem foreign and uncomfortable but it is a necessary and serious process. The key features of planning for death should include a Will, an Enduring Power of Attorney, and an Advanced Care Directive for health decisions. Everyone’s situation is different. Do you have assets? Do you have children or step-children? Will your superannuation form part of your estate when you die? Seeking proper advice for your Will ensures that what you want to happen to your assets is what is directed. An Enduring Power of Attorney ensures financial decisions can be made for you in the event of incapacitation...

01 Sep

Posted at 00:00h in Wills & Estates

The recent death of Mr Hugh Hefner has provided worldwide publicity about prenuptial agreements and a wife apparently receiving nothing from an estate. Mr Hefner was well known for his hedonistic pursuits of pleasure and self-gratification. He was also well known for his wealth, three marriages, numerous relationships, the publishing of avant-garde magazines such as Playboy and his strong support for freedom of speech and expression. The recent publicity reports that his third wife, Ms Harris will not inherit anything, as she has been left out of his Will. According to the Daily Mail, amongst other publications, it is said that Ms Harris was not made a beneficiary of his Will. The media also reports about there being an ironclad prenuptial agreement between Ms Harris and Mr Heffner. Apparently, Ms Harris will be taken care of by undisclosed means. It is reported that his estate is to be divided among his four children, the University of Southern California and a list of charities. The issues mentioned in relation to Mr Hefner, are common in many countries including Australia – with lesser fortunes, fewer marriages and relationships. They do however point out the complexity which needs to be dealt with. We at Belperio Clark Lawyers...

01 Aug

Posted at 00:00h in Wills & Estates

It’s time to change the way Australians talk about death and dying – 75% of us have not had an end of life discussions and over 70% of us die in the hospital though most of us would prefer to die at home. August 8th is ‘DYING TO KNOW DAY’; a day that aims to encourage conversations about planning for the end of life. While many find conversations about death uncomfortable, planning for such an event can make it more bearable for all when the time comes. This preparation should include a Will, an Enduring Power of Attorney and an Advanced Care Directive. An Advanced Care Directive allows you to outline your wishes for the future should something unexpected happen that results in you becoming incapacitated. This includes directions such as what type of care you may want to receive, whether you would prefer treatment at home or in a hospital, and who can make decisions about your health and lifestyle should you not be able to. Similarly, an Enduring Power of Attorney is a legally-binding document that allows you to appoint somebody who can make financial decisions on your behalf if you become incapacitated and unable to make those decisions yourself. A professionally drafted Will is also essential for...

01 Aug

Posted at 00:00h in Wills & Estates

Did you know that today is ‘Dying to Know Day’? The GroundSwell Project want to encourage all Australians to: develop their death literacy make the end of life plans such as a will and advance care plans share these wishes with their families get informed about end of life and death care options such as dying at home, home and community-led funerals and natural burial be better equipped to support family and friends experiencing death, dying and bereavement The thought of death is unpleasant for many people but a part of life. We encourage all of our clients to consider the inevitable and to prepare. A professionally prepared Will is crucial. An Advanced Care Directive lets you set out your wishes for your healthcare including the end of life care. Morbid? No, just part of living. Give us a call today to talk about Wills, Enduring Powers of Attorney and Advanced Care Directives. Or as we like to call them ‘A Peace of Mind Pack’! Phone: (08) 8212 1322 ...

01 Aug

Posted at 00:00h in Wills & Estates

A substantial number of people are now finding themselves being advised of an inheritance of either real estate or money in bank accounts located in foreign jurisdictions. Unfortunately, most of the general public are unaware or unsure of how to actually claim or obtain these inheritances.  Neither are government departments or a large number of the legal profession able to assist. This is a specialist area. It is important that people who find themselves in this position are aware of 2 fundamental facts: – almost certainly it will be necessary for you to engage a notary public; it will also be important to engage a notary who understands overseas civil law jurisdictions in the way in which that legal system operates as opposed to the Australian common law system. All Notaries Public must be lawyers in South Australia but not all lawyers are a Notary Public. If you do find yourself in the position of having to obtain a foreign inheritance or deal with foreign jurisdictions our notary Roy Hasda at Belperio Clark can assist in all the above matters and more. Roy has experience with Civil Law jurisdictions and speaks and writes Italian and French....

01 Nov

Posted at 00:00h in Wills & Estates

From Lexology 31 Jul 2015 Case Review: Burke v Burke [2015] NSWCA 195 Recently, the Court of Appeal of the Supreme Court of New South Wales has given some firm guidance upon community values and expectations when an estranged adult son made an Inheritance Family Provision claim against his mother’s estate Mrs Beryl Burke died a widow aged 93 years. She was survived by her three adult children, Terry, Alan, who was the executor of her Will and Diana. In her Will, the deceased left a legacy of $100,000 to her grandson, Stephen and the residuary of her estate was divided equally between Alan and Diana. She made no provision for Terry with whom she had no contact for about 20 years prior to her death. In a letter prepared before her death, Mrs Burke explained that she had not included Terry in her Will to reflect the fact that he, through his own choosing, was no longer a part of her life, having become totally estranged from the entire family. Terry commenced proceedings in the Supreme Court seeking a family provision order out of Mrs Burke’s estate. It was not disputed that Terry was in financial need. The trial judge found that Mrs Burke was...

01 Aug

Posted at 00:00h in Wills & Estates

From LEXOLOGY July 2015 Many people assume their existing Will automatically deals with their discretionary trust and superannuation assets. Our firm raises with clients that these assets usually are not automatically dealt with under their Will and special attention needs to be given. The truth is these assets may or may not end up being dealt with under people’s Will. Therefore, it is important that they are dealt with in the way the law allows to ensure they end up with the persons you intend. The main considerations relevant to an estate plan include: Dealing with control of a discretionary trust –  check the powers of appointment in the trust deed (if any) and ensure that the power of the appointor can be passed onto a person of the appointor’s choosing under their Will; consider whether the trust deed needs to be amended to allow for this. Who are the beneficiaries? –  check who you want to receive the trust assets and ensure that those persons are beneficiaries in the trust deed. We can advise when making Wills what can be done to achieve these wishes. Superannuation – check to see if a valid binding death nomination has been made (in addition to taking proper financial advice...

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