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The Perils of Informal Wills: Why a Note May Not Be Enough

Mon, 22 Sep 2025 02:17:40 GMT

Case Summary: When a Note Isn’t a Will

Imagine this scenario: After a loved one passes away, a note is discovered—perhaps on their phone, in a drawer, or scribbled on a piece of paper. The note sets out some wishes about who should inherit their assets. Family members hope this note will be accepted as the person’s will. But when the matter goes to court, the judge decides the note is not a valid will.

This situation is more common than many realize. In a recent case, a note titled “Last Will” was found on the deceased’s phone. While it expressed some intentions about distributing the estate, the court refused to accept it as an “informal will.” Why?

In the case of Gallotti v Galotti-Brown [2025] WASC 384 a handwritten ‘amendment’ was written on a duly executed will. Was this amendment part of the will?

Why the Note Was Not Accepted

Australian law (and the law in many other places) allows courts to accept a document as an “informal will” even if it doesn’t meet all the usual requirements (like being signed and witnessed). But the court must be convinced of three things:

There is a document.
The document sets out the person’s testamentary intentions (what they want to happen to their property after death).
Most importantly: The person intended the document to operate as their will.

In the case above, the court found that the note was more of a draft or a statement of wishes—not a final, operative will. There was no evidence the deceased intended the note to be their last will and testament. The absence of a signature, witnesses, or any indication that the note was meant to be final all counted against it.

The Dangers of Informal Wills

Relying on informal documents—like notes, emails, or unsent text messages—to express your final wishes is risky. Here’s why:

Uncertainty: Courts may not accept the document, leaving your estate to be distributed according to the law, not your wishes.
Family Disputes: Ambiguous or informal documents can lead to costly and stressful legal battles among loved ones.
Delay and Expense: Proving an informal will is often more complicated, time-consuming, and expensive than preparing a formal will.

How to Protect Your Wishes

Make a Formal Will: The safest way to ensure your wishes are followed is to make a formal will, properly signed and witnessed.
Review Regularly: Update your will as your circumstances change.
Seek Legal Advice: A qualified lawyer can help you avoid pitfalls and ensure your will is valid.

Don’t leave your legacy to chance. A simple note may not be enough—take the time to make a proper will and give your loved ones certainty and peace of mind.

Why Updating Wills in Perth Should Be a Priority

Thu, 21 Aug 2025 05:58:40 GMT

Wills in Perth are more than just legal documents—they are the cornerstone of your estate planning. Whether you’ve recently created one or it’s been sitting in your drawer for years, your will should reflect your current life circumstances. In Western Australia, failing to update your will can lead to unintended consequences, including disputes among loved ones or assets being distributed contrary to your wishes. That’s why regularly reviewing and updating your will is not just smart—it’s essential.

Life Changes That Demand a Will Update

Wills in Perth must evolve with your life. Major life events are the most common triggers for updating a will. Here are some key moments that should prompt a review:

Marriage or Divorce: In WA, marriage or divorce can automatically revoke a will unless it was made in contemplation of that event. If you’ve tied or untied the knot, your will may no longer be valid.
Birth of Children or Grandchildren: Adding new family members means reconsidering guardianship and inheritance plans.
Death of a Beneficiary or Executor: If someone named in your will passes away, you’ll need to appoint new individuals.
Significant Financial Changes: Acquiring or selling property, starting a business, or receiving an inheritance should all be reflected in your will.

Relocation or Change in Residency: Moving within or outside of Western Australia may affect how your will is interpreted.

H2- Legal Requirements for Updating Wills in Perth

Wills in Perth must meet specific legal standards to be valid. According to the Wills Act 1970 (WA), any amendments must be made in writing, signed by the testator, and witnessed by two people who are not beneficiaries. You can either:

Create a Codicil: A legal document that modifies your existing will.
Draft a New Will: Often the cleaner and more secure option, especially if multiple changes are needed.

Working with a local legal expert ensures your updates are legally binding and reflect your true intentions.

How to Review and Amend Your Will

Step-by-Step Guide to Updating Wills in Perth

Wills in Perth should be reviewed every 3–5 years or after any major life event. Here’s how to go about it:

Review Your Current Will: Read through your existing document and highlight areas that are outdated or incorrect.
List the Changes Needed: Whether it’s updating beneficiaries, changing executors, or adjusting asset distribution, be clear on what needs to change.
Consult a Legal Expert: A Perth-based wills and estate lawyer can guide you through the process, ensuring compliance with WA laws.
Execute the Changes Properly: Whether you’re drafting a codicil or a new will, make sure it’s signed and witnessed correctly.
Store It Safely: Keep your updated will in a secure location and inform your executor of its whereabouts.

Why DIY Updates Can Be Risky

While DIY will kits are available, they often fail to meet the legal standards required in Western Australia. Wills in Perth that are not properly executed can be contested or deemed invalid. Working with professionals like those at Biddulph & Turley ensures your will is both legally sound and tailored to your unique circumstances.

The Role of Local Experts in Perth

How Perth-Based Lawyers Add Value

Wills in Perth benefit greatly from local legal expertise. Lawyers familiar with WA’s estate laws can:

Ensure your will complies with the Wills Act 1970 (WA).
Help you navigate complex family dynamics or blended families.
Provide guidance on enduring powers of attorney, guardianship, and advance health directives.
Minimise the risk of disputes or challenges to your estate.

Fixed-Fee Services and Peace of Mind

Many Perth law firms, including Biddulph & Turley, offer fixed-fee services for will updates , making the process transparent and affordable. This means you can update your will without worrying about hidden costs and with the confidence that your estate plan is in expert hands.

Common Mistakes to Avoid

Pitfalls That Can Undermine Your Will

Even well-intentioned wills in Perth can fall short if not properly maintained. Here are common mistakes to avoid:

Failing to Update After Major Life Events: This can lead to outdated beneficiaries or executors.
Not Considering Superannuation or Insurance: These often require separate beneficiary nominations.
Using Unclear Language: Ambiguities can lead to disputes.
Improper Execution: A will not signed or witnessed correctly may be invalid.

How to Ensure Your Will Stands the Test of Time

To keep your will effective:

Schedule regular reviews with your lawyer.

· Communicate your wishes clearly to your family and executor.

· Keep your documents updated and securely stored.

Why Updating Your Will Is a Gift to Your Loved Ones

Protecting Your Legacy with Wills in Perth

Wills in Perth are not just about distributing assets—they’re about protecting your legacy and easing the burden on your loved ones. An outdated or poorly written will can lead to confusion, conflict, and costly legal battles. By keeping your will current, you ensure your wishes are honoured and your family is supported during a difficult time.

Peace of Mind Starts with a Conversation

Updating your will is one of the most thoughtful things you can do for your family. It shows foresight, care, and responsibility. And with the help of experienced professionals, the process is simpler than you might think.

If you’re ready to review or update your will, the team at Biddulph & Turley is here to help. Our experienced Perth-based lawyers offer personalised, fixed-fee services to ensure your estate plan reflects your current wishes and complies with WA law. Call us today at 08 9398 5533 , and let’s make sure your legacy is protected—because your peace of mind matters.

How to Choose the Right Executor for Your Will in Perth, WA

Wed, 25 Jun 2025 04:34:31 GMT

Creating a will is a crucial step to ensure your assets and wishes are handled appropriately after you pass away. If you are working on wills in Perth, WA, with the guidance of Biddulph & Turley, selecting the right executor is a vital part of this process. Here’s what you need to know to make an informed decision.

What Is an Executor?

An executor is a person or institution responsible for managing your estate after your death. They ensure your will is followed, pay off any debts, and distribute assets as specified. This role is significant and can be quite demanding, so selecting the right executor is crucial.

Responsibilities of an Executor

Before you choose an executor, it’s essential to understand their responsibilities. These include:

Probate Process: Filing the will with the court and obtaining legal authority to act.
Managing Assets: Collecting and managing your assets until they are distributed or sold.
Debts and Taxes: Paying any outstanding debts, bills, and taxes owed by the estate.
Distribution of Assets: Ensuring your beneficiaries receive their inheritances as per your will.

Factors to Consider When Selecting an Executor

When choosing an executor for your will in Perth, WA, consider the following factors:

Trustworthiness

Your executor should be someone you trust implicitly. They will have control over your estate, so integrity is paramount. This person must make decisions that align with your wishes and the best interests of the beneficiaries.

Organizational Skills

An executor’s role involves significant paperwork and deadlines. Selecting someone well-organized and detail-oriented is crucial. They need to keep track of various tax forms, bills, and court documents efficiently.

Willingness and Capability

Ensure that the person you choose is willing to take on the role. It demands time and effort, so it’s courteous to discuss this with them beforehand. Additionally, consider their ability to handle stressful situations and make unbiased decisions under pressure.

Knowledge of Financial and Legal Matters

While not a necessity, an executor with a basic understanding of financial and legal matters can navigate the complexities of the role more easily. They don’t need to be experts; they can seek professional help. However, some familiarity can be a bonus.

Alternatives to Family Members

Many people often select a close family member as their executor, which can be beneficial due to trust and familiarity. However, sometimes a professional executor, such as a lawyer or trust company, is a better choice, especially for more complex estates or to avoid potential conflicts among family members.

Professional Help

In some cases, appointing a professional executor from a trustworthy organisation ensures an unbiased and experienced approach. This option, although it involves some costs, can often save time and prevent disputes.

What Happens If You Do Not Choose an Executor?

If you don’t name an executor, the court will appoint one for you. This individual may not align with your ideals or your family’s interests, potentially creating additional stress for your loved ones.

Choosing the right executor ensures your wishes are carried out properly. Consider who you trust and their skills carefully. For more guidance on wills in Perth, WA, contact Biddulph & Turley.

Secure Your Estate Today With Professional Guidance

Not sure who to appoint as your executor? Contact Biddulph & Turley in Perth, WA, to discuss your options and get started on your will today. Their experienced team can help guide you through this important decision.

Remember, the right executor ensures your wishes are honoured and your loved ones are supported. Take action now to secure your estate’s future.

Why You Should Never Rely on an iPhone for Your Will: Lessons from the Peek v Wheatley Case

Wed, 11 Jun 2025 06:54:19 GMT

In recent years, the rise of technology has made it easier than ever to create, store, and even amend important documents like wills. Many people assume they can simply jot down their wishes on their phone or leave a note in a digital app, believing this to be sufficient for estate planning. However, legal cases such as Peek v Wheatley [2025] NSWSC 554 highlight the dangers of informal, unprofessional will-making—especially when using a device like an iPhone.

The Case at a Glance

In Peek v Wheatley, the court examined whether a note found on the late Colin Peek’s iPhone could be considered a valid informal will under the NSW Succession Act 2006. The note, titled ‘Last Will of Colin L. Peek,’ was discovered after his death, and it appeared to specify how his estate should be distributed—primarily passing significant assets to a friend and executor, Mr Wheatley.

However, the court faced the challenge of determining whether this digital note truly represented Colin’s testamentary intention—that is, whether it was his clear, deliberate wish to dispose of his estate as stated, with the intention for it to have immediate legal effect.

When Will a Document Be Accepted as an Informal Will?

In most Australian States, a document that does not meet the formal requirements of a will (such as being signed and witnessed) can sometimes still be accepted as a valid "informal will" if certain criteria are met. The key questions are:

Did the deceased intend the document to operate as a will?
Was the document clearly intended to dispose of the estate?
Did the document demonstrate a genuine testamentary intention?

In Peek v Wheatley, the court examined whether the note on the iPhone was created with the intention for it to serve as the deceased’s final testament. The court recognized that while the note contained the deceased’s wishes, it was unclear whether the document was intended to take effect, without more (that is without the will making doing anything else). It was possibly a “working document” or a ‘dry run’ that might be amended later by the will maker or simply a document that he intended to pass on to his solicitor to prepare a will based upon it.

The Pitfalls of Informal, Digital Wills

This case underscores why relying on informal methods—such as notes on a smartphone—is perilous:

Lack of Formalities:
A valid will typically requires signatures, witnesses, and clear language. Digital notes often lack these formalities, making their validity uncertain.
Ambiguity of Intent:
A casual note or message may not conclusively demonstrate the testator’s intention for the document to be their final will, especially if created in a moment of emotion or without legal advice.
Potential for Disputes:
Informal documents are more easily challenged, leading to costly and time-consuming court disputes, as seen in this case.
Risk of Misinterpretation:
Digital notes can be vague or incomplete, and their meaning can be misinterpreted, especially if they are not drafted with legal precision.

Why You Should Have a Lawyer Prepare a Formal Will

The Peek v Wheatley case exemplifies the importance of engaging a qualified lawyer to draft your will. A lawyer ensures that your testamentary wishes are clearly articulated, legally valid, and less susceptible to challenges. They will:

Use precise language to avoid ambiguity
Follow all legal formalities (signatures, witnesses)
Provide advice on estate planning tailored to your circumstances
Minimize the risk of intestacy or disputes after death

Final Thoughts

While it might seem convenient to jot down a quick note on your iPhone or leave a casual message, this approach is fraught with legal uncertainty. The law prefers formal, properly executed documents to ensure your wishes are respected and to minimize disputes among your loved ones.

If you want your estate to be distributed according to your wishes, consult a qualified estate planning lawyer. They will craft a robust, legally sound will that stands up in court and provides peace of mind for you and your family.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalised estate planning assistance, please contact a qualified lawyer.

Would you like me to help you draft a tailored legal will or provide further information?

Should you seek to get probate where the Deceased may not have had capacity?

websitebuilder@thryv.com — Wed, 13 Mar 2024 18:56:44 GMT

The recent case of Diedler v Borowiec 2023 WASC 396 is perhaps a cautionary tale for those beneficiaries of a doubtful will.

The Deceased made a will with the Public Trustee in 2018. At the time he has 97 years old. For all intents and purposes, when the will was prepared, the Deceased appeared to have capacity- he lived independently, drove his own car (!) and managed his own finances. He did not want his step son and his own daughter to benefit from his estate.

Following a trial , a judge found that the Deceased suffered from delusions at the time he made the will including a belief that his daughter was a witch, was trying to poison him. That she was practising witchcraft and that she flew through his window and was stealing items form him. In fact there had been concerns about his mental health for a least five years prior to him making the will.

Following his death, the Public Trustee obtained medical reports and came to the conclusion that the 2018 will was invalid. However, the beneficiaries of the 2018 will were not happy with that decision and decided to seek proof of it by issuing proceedings in solemn form in the Supreme Court of Western Australia.

Having lost the case, the question arose as to who should pay the solicitors costs. The court found that, having regard to the medical evidence, it was unreasonable for the beneficiaries of the 2018 will to have sought to prove it. Several offers of settlement (‘Calderbank Offers’) had been made by the beneficiaries of an earlier (1981) will, all of which had been rejected.

The court ordered that the Plaintiffs (the beneficiaries of the 2018 will) pay the Defendants costs on an indemnity basis. Those costs would no doubt be very substantial.

Although the person seeking to propound the will may have a honest (bona fide) belief that the will is valid, the belief must also be reasonable. On the facts, with the available medical evidence, the court found that the belief was not reasonable and the Plaintiff should bear not only their own legal costs but also the Defendants. As a point of reference, in the Victorian case of O’Donoghue v Mussett [2008] VSC 63, the Plaintiff’s costs were $250,000 up to the third day of a trial. The Defendant’s costs would be similar, so it becomes a very expensive exercise and not on to be lightly undertaken.

If you need advice concerning the validity of a will, contact us now.

Preparing A Will When You Have Properties In Two Different Countries

websitebuilder@thryv.com — Mon, 22 Aug 2022 00:16:39 GMT

Great care must be taken when drafting a will to cover the situation where you have assets in different countries.

Generally speaking, if you make a will in Australia (or in any other country) it will deal with all of your estate wherever situated including land held in any country (such as, for example, in the UK or India). This would require, upon your death, for a grant of probate to be obtained in Australia to deal with the Australian assets and then for that grant to be ‘resealed’ in the other country to deal with the assets in that country. This is a straight forward process in countries that are "One of Her Majesty's Dominions" but may be more difficult in other countries that have different systems of law.

There may be situations where it is preferable to have two wills, one for each country where the assets are held. For example, it may be appropriate to appoint an Australian executor to deal with the assets in Australia and a will appointing a UK executor to deal with the assets in the United Kingdom.

Particular care should be taken when preparing such wills. We would recommend that only an experienced solicitor be engaged (in each country) and the solicitor preparing the second will should be given a copy of the will made in the other country.

An example of what can go wrong can be seen in Sangha v Estate of Diljit Kaur Sangha 2022 EWHC 2157 Ch . There, the deceased had assets (about £35m worth) in both the UK and India and made a will in India in 2016 that had a (standard) revocation clause (to the effect “I hereby revoke all prior wills”). The question arose was did this revoke an earlier will made in the UK in 2007 that left all of the Deceased’s UK property to his second wife.

In the event it was held (on appeal) that the Indian will made in 2016 did not revoke the earlier 2007 UK will. Such a situation could have been avoided altogether if the Indian will had expressly stated “I revoke all my previous wills including any will made by me dealing with my estate located outside of India” or (if that was not the intention) “I revoke all my previous wills except any will dealing solely with my estate in the United Kingdom’.

If you need help preparing a will, please contact us on 08 9398 5533 .

De facto and Revoking a Will

Fri, 22 Feb 2019 21:45:12 GMT

Does the ending of a De Facto Relationship Revoke a will?

Does the ending of a de facto relationship revoke a will/

de facto and revoke specialist

In Western Australia, effective from the 9th February 2008, divorce has the effect of revoking a will.

Prior to that time, a person might separate from their spouse, effect a matrimonial property settlement, obtain a divorce and, having omitted to make a new will, find that their entire estate is bequeathed to their much despised ex-wife. To avoid this undesired outcome (until such time as section 14A was enacted), the clear obligation rested upon the will maker to make a new will as soon as they separated from their spouse.

What then, is the situation for wills where a de facto relationship has come to an end between the time of the making of the will and the will makers’ death?

It is noteworthy that the amendment to the Wills Act in 2007 enacting Section 14A refers only to marriages (and not de facto relationships):

“(1) In this section —

Family Court of Australia

means the Family Court of Australia created by the Family Law Act;

Family Law Act

means the Family Law Act 1975 of the Commonwealth.”

No reference is made in section 14A of the Wills Act to the Family Court Act 1997, which, since the amendments made by the Family Court Amendment Act 2002 gives exclusive power to the Family Court of Western Australia to settle disputes between de facto partners. There is, it is submitted, a compelling argument (as a matter of statutory construction) that the omission of any reference to the ending of a de facto relationship in section 14A of the Wills Act, meant that parliament did not intend such relationships to be covered, particularly since the amendment came into effect some five years after the amendment to the Family Court Act 1997 that gave the Family Court of Western Australia the jurisdiction to deal with de facto relationships.

The matter was recently considered by Master Sanderson in Blyth v Wilken [2015] 486 See case here The facts were that the deceased died on the 28th August 2014 having made a will dated the 2nd December 2003 leaving his entire estate “UPON TRUST for my de facto wife KATHRINE MARY MURRAY absolutely provided she survives me for a period of twenty-eight (28) days”.

Ms Murray did so survive him. The difficulty was that the de facto relationship had ended on 21 December 2011.

At paragraph 7, Master Sanderson said:

“Pursuant to s 14(2) of the Wills Act when a married couple is divorced any will then in existence is revoked. The section makes it plain revocation takes place upon the orders dissolving the marriage being issued. In other words the involvement of the Family Court of Western Australia is a precursor to the will being revoked. With a de facto relationship the parties are free to go their own way by agreement. They may, under the appropriate legislation, resort to the Family Court if they cannot resolve their differences with respect to property or children. But even if the Family Court is involved in those types of disputes at no time does the Family Court issue a decree which dissolves the relationship. Thus a will entered into by a de facto partner when the relationship is sound continues to apply even when the relationship is dissolved.’ (underlining added for emphasis).

Those comments would appear to support the proposition that the ending of a de facto relationship does not, of itself, revoke a will. However, the Master found that the gift to Ms Murray was not effective:

“9 In my view to read the will in that way ignores the reality of the relationship. The deceased bequeathed the property to Ms Murray because she was his de facto wife. Once that ceased to be the case it seems to me the intended disposition should fall away. The position can be contrasted with a gift to ‘my son John’. If after the signing of the will the testator and his son became estranged it would not alter the fact that the phrase ‘my son John’ would still describe a particular person and a particular relationship.”

It is submitted that the reasoning is not compelling (even if the result may have been appropriate in the circumstances). What if the will had referred to the de facto only by name and not included the description “my de facto wife”?

Just as a divorced will maker who did not wish an ex-wife to benefit was required to make a new will before the enactment of Section 14A, so to could a separated de facto partner make a new will to avoid this result if they so desired.

What of the will maker who may still wish his “ex” de facto to be able to receive his estate (perhaps because those who would take on an intestacy are, in the will makers eyes, less deserving)? The Blyth decision would suggest that the will maker would need to prepare a new will confirming their intentions.

Another argument against the interpretation that was adopted is that wills are generally construed so as to avoid intestacy.

The decision also raises the interesting question of when does a de facto relationship end? As to that issue, consider the recent case of Chan v Waldemar Mazurkiewicz [2015] WASC 432 See Chan case here

If the relationship has ended (albeit only a short time before the will maker’s death) then, on the basis of the Blyth decision, the (now ex) de facto would not be entitled in the estate (regardless of whether any property settlement had been reached in the Family Court or otherwise). Nor would the ex de facto be entitled on an intestacy (since they would not have been in the relationship “immediately” before the Deceased’s death as required by Section 15 of the Administration Act.) Neither would the ex de facto have any claim under the Family Provision Act (again subject to the evidentiary issue that the de facto relationship had in fact ended – the onus of establishing being on the person asserting the continued existence of the relationship –see Chan).

These circumstances lead to the recommendation that, in the event of a de facto relationship coming to an end:

1) The will maker should immediately make a new will;

2) The de facto partner prejudiced by potentially being omitted from the will should immediately commence proceedings in the Family Court of Western Australia for property orders to safeguard against the possibility of the will maker dying before any property settlement is reached. Such proceedings could then be maintained against the Deceased’s estate and avoid the uncertainties of a Family Provision Act claim.

This entry was posted in Uncategorized on February 12, 2016.

Should I use a will kit to make my will?

Fri, 22 Feb 2019 21:44:47 GMT

“The making of home-made Wills can lead to problems. That statement is not a paid advertisement for the legal profession. It is a statement of fact. This case illustrates the point.” Per Master Sanderson Epps v Homer [2006] 290

The Background

Mr and Mrs H. were married in 1986.

Mr H. had three children from a previous marriage. Mrs H. had four children from a previous marriage.

Mr H. got a will kit from a newsagency and drafted wills.

What they wanted to achieve

It appears that what Mr H and Mrs H wanted to achieve was:

i) to give certain specific items to their respective children;

ii) Mr H gave $15,000.00 to be divided between his children;

iii) The remainder of their estate (‘the residue’) was to go to the survivor of them;

iv) Upon the death of the survivor of them (that is when the last of them died) the residue was to be split 50% between Mr H’s children and 50% between Mrs H’s children.

A perfectly straightforward and reasonable arrangement for blended families.

What the will said

After the arrangements described in (i) and (ii) above Mr H.’s will said:

“BUT IN THE EVENT THAT MY WIFE …. AND MYSELF SHOULD PASS AWAY AT THE SAME TIME (emphasis added)….. I LEAVE ALL THAT PART OF MY ESTATE BEQUEATHED TO MY WIFE TO OUR CHILDREN, FIFTY PERCENT (50%) TO BE SHARED EQUALLY BETWEEN MY NATURAL CHILDREN, AS PREVIOUSLY NAMED, THE REMAINING FIFTY PERCENT (50%) TO MY STEP CHILDREN, TO BE SHARED EQUALLY” (between them).

The Problem

Mr H. died in 2004.

Mrs H. had died in 1998 (six years before).

They had not died “at the same time” as contemplated in the clause in the will. The question was, did the wording of the will have the effect that the residue of the estate would be split 50/50 in these circumstances?

The court said no. The words used were unambiguous. Mr and Mrs H. had not passed away “at the same time”. There was a six year gap between their deaths. What Mr and Mr H had really meant to say was “If (my wife or husband) does not survive me to divide the residue of my estate equally between those of my children and my (wife or husband’s) children.”

The unhappy or happy result (depending upon your point of view)

The clause in the will failed. There was an intestacy of the part of the will dealing with the residue (which was most of the estate). According to the rules of intestacy, Mr H.’s children were entitled to all of the remainder of his estate and Mrs H’s children missed out- step children are not a person’s children unless they are legally adopted.

This entry was posted in Uncategorized on February 19, 2016.

Can an unsigned will be valid.

Fri, 22 Feb 2019 21:44:23 GMT

Is a will that hasn’t been signed or dated properly invalid?

The easy bit first: a will does not have to be dated to be valid. In Australia, none of the Acts governing the requirements for a valid will require it to be dated. It is, of course, a very good idea to date a will, not least because a dispute may otherwise arise (if there is more than one will) as to which one was made last.

The requirements for a valid will are (in all states and territories of Australia) that the will be signed by the will maker in the presence of two witnesses (some Acts require both the witnesses and the will maker to all be present at the same time, but others permit the second witness to sign later). Again, as a matter of practice, it is a good idea that everyone is present at the same time as this safeguards against allegations of impropriety.

Very often, wills are not signed properly: sometimes there is only one witness and sometimes none. Occasionally, wills get signed by the wrong person (the husband signs the wife’s will by mistake, the wife the husband’s will by mistake). In all of these situations, wills have nevertheless been upheld as valid.

In each State and Territory, legislation exists that permits otherwise invalid wills to be admitted to probate. These provisions are generally referred to as ‘dispensing powers’ (that is, they dispense with the usual formal legal requirements required to make a will).

In Western Australia Section 32 (2) of the Wills Act relevantly provides that: a document may be admitted to probate, if it is:

A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by (the Wills Act)… if the Supreme Court is satisfied that the person intended the document to constitute the person’s will.. “

The courts have interpreted this to mean:

There must be a document;

The document must purport to embody the testamentary intentions of the Deceased;

The court must be satisfied that, either, at the time of the document being brought into being, or, at some later time, the Deceased, by some act of words, demonstrated that it was his or her then intention that the document should, operate as her, or his, will.

Lawyers commonly refer to such documents as “informal wills”.

In every case it is a question of the intention of the person making the will: did the person making the document intend it to be his will? Sometimes the intention is readily inferred from the circumstances: for example, if a person buys a will kit (you know, the ones you get from the newsagency headed “Legal will” or similar), completes it, signs it and then tells someone (or sometimes ‘everyone’) that they ‘have made a will’, such a document is quite likely to be admitted to probate even though it is not witnessed by two witnesses (or even dated). However, as with most things in the law, ‘it all depends’ on the circumstances- if the person had previously had a will prepared by a solicitor then it could be inferred that they knew that the will should be signed by two witnesses and a court may well be reluctant give probate of the ‘informal will’ . Similarly, if the person was in the habit of telling people that “I’ve made a new will” (when they hadn’t really) then the court would be reluctant to infer that the will was anything but a draft and was not intended to be a final will.

Common circumstances in which ‘informal wills’ are made (and either are or are not admitted to probate) are:

Suicide Notes

Sadly, these arise quite often. Sometimes they are admitted to probate, sometimes they are not. It usually depends on the wording and whether or not there is a valid existing will (if there is a formal valid will, the suicide note is less likely to be admitted to probate).

Draft wills prepared by solicitors.

It sometimes arises that a person instructs a solicitor to prepare a will. The person sees the lawyer and the lawyer sends a draft (hopefully) only a few days later to the will maker with the request that they advise of any amendments and otherwise ‘come in and sign the will’. Fate intervenes and the will maker dies before the appointment to sign the will (or even having had the opportunity to make an appointment to sign).

If the will maker has acknowledged the correctness of the draft (for example, by ringing or telling the lawyer that ‘the draft is fine’) then there is a good chance the will may be accepted into probate.

If the will maker never sees the draft (before death) then it is less likely that the document would be accepted into probate.

This means that there are cases where a document is accepted into probate even though it has not been signed by the will maker.

This entry was posted in Uncategorized on April 8, 2016.

10 Mistakes with Wills and Estate Planning

Fri, 22 Feb 2019 21:43:53 GMT

Ten Most Common Mistakes Made with Wills and Estate Planning

1) Not having a will.

If you don’t have a will, then you are leaving a problem behind for everyone.

This applies even if you situation is ‘simple’ and doubly so if you die leaving a second wife or de facto and children from a previous marriage or relationship.

Any will is better than no will.

2) Making your own will.

It may be that you are able to make a simple will quite easily. However, if you are making a simple will, make sure you have a simple situation.

A ‘blended family’ is never a simple situation. Nor is it simple if you own a business, have a farm (or other significant property).

3) Not understanding that your wishes can be over ridden by a Court.

More specifically, this means not understanding that certain groups of people (spouses -including de facto spouses, children – including adult children that you are estranged from) are entitled to provision from your estate.

It doesn’t matter that you have had little contact with your (now adult) children since you got a divorce (or for whatever other reason). What matters is that you make ‘adequate and proper’ provision for them. This is not what you decide is ‘adequate and proper’ but what a court thinks.

4) Thinking that you are not in a de facto relationship.

It doesn’t matter what lengths you go to (keeping finances separate, keeping separate residences for Centrelink purposes etc). It doesn’t matter that YOU think you are not in a de facto relationship or even if you and your partner both think you are not in a de facto relationship. What matters is whether a court decides that you are in a de facto relationship.

5) Not understanding the difference between joint tenancy and tenants in common.

Joint tenancy means that, when one co-owner dies, that persons interest in the property passes authomatically to the survivor. It doesn’t matter if the will says something different.

Joint tenancy is great where it is intended that the property goes to the surviving spouse (as it means that no grant of probate is required). However, if there are children from a previous relationship that you wish to benefit, joint tenancy may mean they miss out.

6) Not understanding that Superannuation is not dealt with by your will.

If you are a member of a public or industry fund, the trustee of the fund must pay any death benefit according to:

a) any Binding death benefit made by you (this can only be to a spouse, a child who is financially dependent upon you or to your estate);

b) A ‘financial dependent’. This includes a de facto (see point 4), children and persons who were otherwise financially dependent upon or in an “interdependency relationship” with the Deceased. It may or may not include step children (fact specific). There are many, many cases where the superannuation is paid to a ‘girlfriend’ (who no-one else believes is a de facto) and not to parents or siblings.

A SMSF must also be dealt with by the terms of the Superannuation Deed (and not your will).

7) Not understanding that assets held in companies, trusts or partnership are not assets that can be dealt with by your will.

8) Leaving making your will too late

If you make a will when you are very elderly or ill, you greatly increase the chance of a challenge on the grounds that you lacked testamentary capacity when you made the will.

9) Not keeping your will safe and where it can be found after you die.

All too often the original will cannote be found after you have gone.

10) Thinking it is all too hard.

See point 1.

This entry was posted in Uncategorized on August 7, 2016.

Recognition in Doyle’s Guide

Fri, 22 Feb 2019 21:42:59 GMT

We are honoured to be recognised by Doyles Guide as a Recommended law firm for Wills and Estate Litigation in 2016 in Western Australia.

Reg Biddulph was also recognised as a recommended “Leading Wills and Estates Litigation Lawyer”.

A link to Doyle’s Guide can be found here: http://doylesguide.com/western-australia/

Doyle’s Guide is an independent guide that publishes annual lists based upon peer and client reviews. The methodology used to compile the list can be found here: http://doylesguide.com/about-us-methodology/

This entry was posted in Uncategorized on September 21, 2016.

Gift or a Loan

Fri, 22 Feb 2019 21:42:27 GMT

The Road to Hell is Paved with Good Intentions.[i]

WILMS -v- WILMS [2016] WASC 396

In 1997, Harry was 57 years old. He had married (for the second time) in 1985.

He wanted to buy a property. The property would cost $80,000 to buy. Because of his age and the fact he was then unemployed, it was difficult for him to borrow money. However, Harry had 30 year old son (from his first marriage), Rene, who was living in Sydney. A mortgagor broker told them that he could organise a loan if Rene would assist.

Arrangements were put in place whereby the property was purchased in Rene’s name for Harry and his wife to live in. Harry paid the deposit ($16,000) and a loan of $64,000 (in Renee’s name) was obtained. Harald met all the repayments on the loan and by January 2013 had paid off all the loan.

By this time, Harry was 73 years old. In February 2013, Rene redrew funds down on the loan (something he could do as both the property and the loan were in his name after all).

Around this time, Harry saw a lawyer. He was apparently advised that he should lodge a caveat over the property claiming that, since he had paid the entire purchase price of the property (including the loan repayments) he was really the owner of the property.[ii]

Did the Court agree?

It all came down to what was agreed to in 1997 when the arrangements were put in place. Unfortunately, the ‘agreement’ was really just a series of conversations made between Harry and his son.

Harry’s understanding of the arrangements was that once he had paid all the loan off, Rene would transfer the property to him.[iii]

Rene’s understanding was that Harry would meet all the loan repayments (and other expenses on the property) and that Harry (and his wife) could live in the property for the rest of their lives. Rene said that it was always understood that ‘one day the property would be mine’.[iv]

Who won?

The judge decided that Rene’s version of events was preferable. Harry’s claim was dismissed. Note, however, that pursuant to Rene’s version, Harry had a life interest in the property.

The Moral of the Story?

Whenever arrangements are made between family members, whether that is simply for an advance of money (a gift or a loan) or more complicated arrangements such as those in this case, the arrangement should be put in writing and signed by all parties. Better still, get a lawyer to write up the agreement.

[i] https://en.wikipedia.org/wiki/The_road_to_hell_is_paved_with_good_intentions

[ii] The legal claim was on the basis that there was a resulting or constructive trust.

[iii] “Although I cannot remember the exact words we both used I put it to Rene that I would pay everything for the house and when it was paid off Rene would transfer the title to me.”

[iv] “He asked me whether I would agree to provide a Guarantee to a Bank, in respect of a loan that he, himself was seeking, to facilitate the purchase of the Wanneroo Property. I told him that I did not want to be a Guarantor. I said that I could obtain a Loan in my name alone, and purchase the Property. I also told him that he could live in the home until he died or no longer wanted to live there, and pay rent to me on a monthly basis. I said the amount of rent would be equal to the monthly mortgage repayments, and that I would use the monies that he paid to me as rent, to repay the loan. He told me that the Wanneroo Property would be mine anyway. He also said he’d pay a large enough deposit to ensure that I would not have to take out Mortgage Insurance. He also said he would pay for all of the other costs associated with the purchasing the property.”

This entry was posted in Uncategorized on December 19, 2016.

Superannuation Complaints Tribunal

Fri, 22 Feb 2019 21:41:48 GMT

I have dealt with a number of Superannuation Death Benefit claims recently so it might be timely to make few comments about Superannuation Death Benefits.

The common situations where disputes arise are:

1) there is a “blended family” (that is where the current spouse of the person who dies is not the parent of the deceased person’s children); and

2) Where the Deceased person is a young person who has not made a will.

The second situation is a particularly traumatic one. Unfortunately, very few young people (people under, say 35 years of age) have gone to the trouble either of making a will or preparing a Binding Death Benefit Nomination. Why would they, as they don’t expect to die?

However, most Superannuation funds have a ‘death insurance’ component. This will usually be worth over $200,000.00 and quite often a lot more. Who will the Death Benefit be paid to?

Case Study 1

The Deceased person committed suicide at age 30. He did not have a will. He did not make any Binding Death Benefit Nomination.

He had two superannuation funds (one only had a contributions balance of less than $1,000.00 but an insurance death benefit of nearly $400,000). The other had a death benefit of nearly $200,000.00 most of which was also death insurance. So the total of both Superannuation funds was over $600,000.00

He was not married and had no children. He did, however, have ‘girlfriend’ who had been living with him for about four months. In Western Australia, a “de facto spouse” is only entitled in a Deceased estate if they are living in a de facto relationship immediately before the deceased person died and the relationship had existed for two years before the person died (for a case example about “immediately before death” read the case of: Chan v Mazurkiewicz

If the Superannuation Death Benefit was paid to the Deceased’s estate then it would be divided between his siblings (one half) and the other half to his parents.

The relationship between the Deceased and the “girlfriend” was (according to the Deceased’s mother) a volatile one and was unlikely to have continued.

Both Superannuation Funds made a determination to pay the death benefit to the ‘girlfriend’. Needless to say the Deceased’s mother was distraught.

Complaints were made to the Superannuation Complaints Tribunal (“SCT”). In all probability, the decisions of the Super fund trustees would have been upheld by the SCT. However, a deal was negotiated between the parties whereby they agreed to split the Superannuation 50/50.

Case Study 2

In this matter, the deceased was aged only 33.

Again, death was by suicide.

He had Super death benefits payable of about $530,000 and other assets (including a house) with a net value of about $300,000.00.

He did not have a will and there were no Binding Death Benefit Nominations in place. He had been in a ‘de facto relationship” for about six years. However, just before he committed suicide, the relationship allegedly came to an end. In point of fact, the Deceased’s parents believed that the Deceased committed suicide after the de facto declined the Deceased’s request to marry him.

As in case 1, if there was no de facto entitled in the deceased’s estate, all of his estate would be divided between his parents and his siblings.

The Superannuation Funds in this case decided to pay the funds “100%” to the legal Personal Representative. However, the de facto (who denied that the relationship between she and the deceased had come to an end) foreshadowed complaints to the Superannuation Complaints Tribunal and also a claim under the Family Provision Act.

Again the matter was settled by a negotiation on the basis that the estate was split 50/50.

Superannuation Complaints Tribunal

The Superannuation Complaints Tribunal (‘SCT”) deals with complaints from persons aggrieved with a decision made by the Trustees of a Superannuation Fund. Very commonly, the complaints are made when the Superannuation Fund has decided to pay a death benefit to the “de facto” spouse of the Deceased.

In many cases, the complainant will be the adult children of the deceased or the persons who would otherwise inherit the Deceased’s estate either through the Deceased’s will or on an intestacy (i.e. no will). Typically, the allegation will be that the “de facto” was not really in a de facto relationship with the Deceased (they were ‘just friends’), or the relationship had ended, or, simply, “the deceased wouldn’t have wanted him/her ot get the death benefit.”

Most people, of course, have little experience of what happens to superannuation when a loved one dies. Unfortunately, this is an area of the law that has outcomes, I personally think, that is both unexpected and contrary to what most people think should occur.

Most people would agree that any superannuation death benefit should be paid to persons who are financially dependant upon the Deceased. However, they quite reasonably would expect that those people would be the persons either set out in the Deceased’s will or that they woud be the persons who take on an intestacy (if there is no will). The trustees of Superannuation see things quite differently, as guided by the legislation and the terms of the Superannuation Trust Deed.

The trustees will invariably point to the fact that if a person wanted the superannuation death benefit to be paid in a particular way, that person would have made sure a Binding Death Benefit Nomination was in place (or a Non Lapsing Nomintion- if the terms of the Super fund trust deed permits it). In partiuclar, if the deceased has wished the death benefit to be dealt with by their will, they would have specified their legal personal representative (that is the executor of the will) as the nominated beneficiary.

So if there is no Binding Death Benefit Nomination, the trustees will look to pay to those persons who were financially dependant on the Deceased. The trustees of the Superannuation Fund will look for persons who would have recieved financial support from the Deceased if he had simply retired (rather than died).

A summary of how death benefits are dealt with is published by the SCT see: Death Benefits Brochure

A deeper understanding of how death benefits are resolved can be found here: Key Considerations that apply to Death Benefits Key Considerations that apply to Death Benefits. http://www.sct.gov.au/dreamcms/app/webroot/uploads/documents/KeyConsiderations-DeathBenClaim.pdf

There are also case studies set out on the Superannuation Complaints website that give examples of various situations.

What the brochures and case studies don’t give an insight into is how little evidence is acceptable to a trustee before it will decide that a person was ‘financially dependant’ upon the Deceased. It is often the case that the Superannuation Fund decides that it will pay out to the ‘de facto’ even if that relationship has only been in existence for a short time (and other people might conclude that the Deceased and the de facto were only in a casual relationship).

You are strongly encouraged to seek legal advice as soon as possible after a person dies. Also, do not rely upon the fact that someone else ‘in the family’ is seeking legal advice (particulary if you are the person who was in a relationship with the deceased).. It is important that you get independent legal advice early in the piece.

Challenging a Decision of the Superannuation Fund in the Superannuation Complaints Tribunal

The prospects of successfully challenging a decision of the Superannuation Fund are slim: in the reporting year ending 2015 there were some 2668 written complaints to the SCT and 1,739 complaints that were either withdrawn or resolved (of which about 40% related to the payment of death benefits). Of the 1739 complaints dealt with only 286 got to the final stage of being reviewed by the Tribunal. In most cases (224) the original decision of the Superannuation fund was upheld. In percentage terms, this means about 80% of the matters heard by the SCT are upheld (or 20% overturned) and that, overall, only about 3.5% of all applications have a successful outcome.

(see page 19 of the annual report) SCT Annual Report 2014-15

The reason why most complaints are unsuccessful is because the Superannuation Complaints Tribunal does not simply make a new determination as to how any death benefit should be paid but rather decides whether it was ‘unfair or unreasonable’ for the Superannuation fund to make that decision in the first place.

However, all is not grim: of the 293 concluded death benefit cases in 2014/15, 209 (71.3%) were settled. In other words, even though a decision of the Tribunal is unlikely to be overturned, most clams result in some sort of settlement.

No doubt a factor in that leads to settlement is the lengthy delay in matters progressing through the complaint process.

If you wish to make (or defend) a complaint to the Superannuation Complaints Tribunal, contact Reg Biddulph

.RJB

This entry was posted in Uncategorized and tagged Challenge Superannuation Fund decision, de facto and Superannuation, Superannuation, Superannuation Complaints Tribunal on December 19, 2016.

Not all Family Provision Claims are Successful

Fri, 22 Feb 2019 21:41:14 GMT

The very recent decision in MILLS -v- PILLER [2017] WASC 45 confirms a recent run of unsuccessful claims in the Supreme Court of Western Australia.

The facts were that the Deceased died age 83. She was dviorced and left five adult children who were all in their 50’s.

The Applicant was the Deceased’s daughter aged 55. She was unemployed. She had no assets to speak of. She was not married or in a de facto relationship. However, she and her adult daughter had lived with the Deceased since 2012 (approximately 3 years before the Deceased died.

The Applicant received Centrelink Benefits including the ‘carer’s pension’ for looking after the Deceased.

The Estate had a net value of about $2.2 million (mainly comprising two properties, one of which was the residence in which the Applicant resided with the Deceased). This meant that each of the five children would get about $400,000.00 from their mother’s estate.

Position of Other Beneficiaries.

One sister was aged 60, was married and earnt $65,000 pa. Her husband was a concrete labourer. They had a house worth $850,000 with a mortgage of about $492,000.

Another sister was 58, separated from her husband and had a salary of $88,000 pa. She had some super ($95k), a car and savings of about $30k. She had agreed with her husband that she would keep the former matrimonial home (worth about $900k) and pay him $490k.

A brother was aged 59, worked as a ‘brickies labourer’ three days a week earning $228 per day. He had super worth about $80k and a $3,000.00 car. He had debts of $53,000.00. He also expected to inherit 80% of a house owned by his father’s estate (upon the death of the life tenant).

The youngest brother was aged 52. His assets were said to be worth about $262,000 and his liabilities were $16,500. He earnt about $60,000.00 a year.

Financially, the Applicant was in a worse position than her siblings. She wanted $650,000 to be paid to her from the estate (including the $400,000 she was entitled to under the will). It was put on her behalf that this would be used to fund the purchase of a house for her to live in.

The Decision.

The Court found that the provision made in the will did not fail to make ‘adequate and proper provision’ for the Applicant.

The court said there were a number of factors that weighed in her favour (the fact she was not married, had not worked for some time, had various ailments, did not have an extravagant lifestyle and had limited reserves). However, weighing these factors up against the competing interests of her siblings (who also suffered various ailments and had ‘liabilities and modest or little superannuation’) there could be no justification for depriving the siblings of their inheritance.

Comment.

Most members of the community would be of the view that a will that divides an estate equally between a person’s children is a ‘fair’ will and a proper one in all the circumstances. Parents tend to give each of their children an equal start in life. Some children do better than others. The ones that do less well sometimes have an expectation that the parents will ‘make the appropriate adjustment’ in their will to ‘level things up’.

This case perhaps illustrates the proposition that a court will not lightly interfere with such a will. There would have to compelling reasons why such a will should be departed from (for example, if the Applicant had severe health problems and/or had devoted substantial time and effort in looking after the Deceased and the other beneficiaries were very well off). None of those factors were present in this case.

If you are considering challenging a will (or defending one), please contact us.

This entry was posted in Uncategorized on February 24, 2017.

Another Home Made Will Bites The Dust

Fri, 22 Feb 2019 21:40:24 GMT

In Rhodes v Rhodes the Deceased made a will which said:

“ALL MY WORLDLY GOODS TO MY EX WIFE WHO WILL DISTRIBUTE IT TO MY CHILDREN AS SHE SEES FIT.”

Presumably, the Deceased and his ex-wife “got on well” (heard that before). They had 5 children together and the Deceased had one other child from another relationship.

So after he died, the ex-wife took the view that if she didn’t distribute everything to the children, she could keep the rest.

The question was, was she right?

The Court ruled that no she couldn’t: the words “will distribute it” meant that she had an obligation to do so. The words “as she sees fit” meant that she didn’t have to treat the children equally (not as the ex-wife contended, that if she saw fit not to do so, she didn’t have to distribute it).

The moral of the story:

1) Perhaps it’s not always a good idea to make your ex-wife your executor;

2) It would have avoided legal fees in the tens of thousands of dollars by spending $400-$500.00 to get a solicitor to prepare the will making your intentions clear.

If you need a will, please contact us.

This entry was posted in Uncategorized on March 1, 2017.

Memo to Accountants: Warning Signs That Your Client May Be at Risk

Fri, 22 Feb 2019 21:40:01 GMT

Professionals should be aware of the warning signs which may mean that their client’s affairs are not in order should they die. It cannot be taken for granted that the client’s know of the potential risks, even if they ought to be aware of those risks. In some cases, sophisticated clients may overlook an aspect of their financial affairs which may lead to trouble at a later stage.

Here are four signs that your client may be at risk:

1. Business and Personal debts and assets are intermingled

Many clients, especially those who are owners of a small business operated through a company or discretionary family trust, are unaware of the risks of intermingling personal and business assets.

It is all too common for a client to refer to the company car as ‘my car’, or for a person to pay company expenses on a personal credit card or vice versa. Assets held through these entities cannot be dealt with through a will but typically a client will refer to those assets as ‘my property’.

A company and assets held by a family trust belong to that company or family trust. It is necessary to deal with those assets by transferring the shares in the company or, in the case of the trust, by transferring control of the trust to the intended recipient.

Consideration must be given to the financial statements of the family trust to see if there are any beneficiary loans either payable to the client (which then become debt payable to their estate) or other persons.

2. There is no business or personal succession plan

Astonishingly, most people do not have a current will or business succession plan. There are a myriad issues that might arise where a person dies without an up to date and validly executed will.

By way of example, a client may be the trustee of a discretionary trust and control a beneficiary loan account. But is the client aware of what will happen to the control of this account if they were to die? Have they taken steps to ensure that this account is properly dealt with after their death?

3. Your client is a Parent of a ‘Blended family’

A ‘blended family’ arises when either party has children from a previous relationship.

If a client is parent with a blended family, and has not properly taken estate planning into account, he or she may be at risk of losing control of how his or her assets are dealt with after his death. These situations are often complicated by the extent to which children were seen to be the children of both parties.

Estate planning for blended families is not straightforward and requires the client to think about possible issues that can arise after they die. For example, what is to stop the existing spouse to changing their will so as to omit client’s own children in favour of their own?

4. SMSF Disputes

Many people do not understand that superannuation does not automatically form part of the estate pursuant to a will. Super is held by the superannuation trustee, and not by the individual person.

The super may be directed to the preferred beneficiary by way of a valid binding death benefit nomination. Most super fund require that death benefit nominations be renewed every three years for a corporate superannuation. A self-managed superannuation fund trust deed may be amended so to include a non-lapsing binding death benefit nomination.

Otherwise, the trustee has the discretion to decide what happens your superannuation. Cases repeatedly show us that even though super has been left to beneficiaries named in a will, the trustees of the super fund will usually pay any death benefit to a ‘de facto spouse’, even if the status of that person as a de facto spouse is not accepted by others.

This entry was posted in Uncategorized on September 5, 2017.

Can I put my super in my will?

Fri, 22 Feb 2019 21:39:33 GMT

Most people commonly assume that whatever you say in your will determines how your superannuation is dealt with. This is usually NOT the case. Superannuation must be paid by the Trustees of the Superannuation Fund in accordance with the governing Trust Deed (which must itself comply with the requirements of the Superannuation legislation.

The Super Fund will pay it either:

In accordance with any valid Binding Death Benefit Nomination; or

To ‘financial dependants’ (as defined by the legislation).

To be valid, a Binding Death Benefit Nomination must be comply with the following requirements:

Prepared within 3 years of your death;
Be properly signed by you, witnessed by two other people, dated and given back to your Super Fund.
The nominated person to benefit can only be a ‘financial dependant’ or your legal personal representative (i.e. the executor named in your will).

Binding Death Benefit Nominations commonly fail because they were not signed properly, were not updated or because the person you nominated was not a ‘financial dependent (e.g. if you nominated your parents or cousin etc they would not usually qualify as a financial dependent).

So, if you want to give your superannuation to someone who is not a financial dependent, you have to make a Binding Death Benefit Nomination giving it to your Personal Legal Representative (your executor) and then stating in your will who gets it.

Note, however, that there may be other reasons why this might not be a good idea:

If your will is likely to be challenged under the Family Provision legislation, it is better not to have the superannuation paid to your estate;

if the intended beneficiary is a potential bankrupt money paid directly from the Super Fund (and not through the will/estate) is a ‘protected asset’ and cannot be used to pay creditors.

You should always get proper legal advice to prepare a will.

This entry was posted in Uncategorized on September 25, 2017.

Texting a will

Fri, 22 Feb 2019 21:38:42 GMT

Queensland Court has found that an unsent text message was intended to be a will and was admitted to probate.

This is still not the preferred way of making your will and even a minor variation of the facts may have resulted in the will not being admitted. You can read about the case here:Qld text by will decision

This entry was posted in Uncategorized on October 9, 2017.

Superannuation Frustration….

Fri, 22 Feb 2019 21:38:21 GMT

Super law should be amended so it is paid to the Deceased estate. In this case, the mother of the children should have accepted the offer.

http://www.news.com.au/finance/money/costs/girlfriend-speaks-out-over-350000-inheritance/news-story/c3cd0fd1668210f27da69d20cd92c8be

This entry was posted in Uncategorized on October 11, 2017.

Q: When are you in a De Facto Relationship? Answer: When a Court tells you that you are

Fri, 22 Feb 2019 21:37:39 GMT

Observations on SMITH -v- RADONICH [2017] WASC 290

In this case a claim for further provision by the Plaintiff, who alleged she was the de facto spouse of the Deceased, failed.

Master Sanderson said that there were three issues to determine:

1) Was the Plaintiff the de facto spouse of the Deceased?

2) If so, was the provision made in the will “adequate and proper”?

3) If the provision made in the will was not adequate and proper, what provision should be made for the Plaintiff?

The facts:The elements of the ‘de facto’ relationship.

The Deceased died aged 61 in 2015. He had never married and had no children. However, he had a close relationship with the children of his late brother George (who was much older than he was). When their parents had died, George had ‘taken the Deceased in’ (although not stated, the implication was that the Deceased treated the children of George – his niece and two nephews- as his younger siblings). These were the defendants to the action.

In 2001, when he was 48, the Deceased formed a relationship with the Plaintiff. She was aged 43 at that time and was a divorcee with three adult children (twins aged 21 and a 23 year old).

The Deceased had a property in Munster and the Plaintiff a property in Noranda. Throughout the relationship (which continued until the Deceased’s death) the parties maintained separate residences. The Deceased would, however, spend most alternate weekends at the Plaintiff’s house. In the first few years of the relationship, the Plaintiff would travel down to the Deceased’s property at Munster. There were occasional mid-week visits. That there was a sexual element to the relationship was not contested. They traveled on overseas holidays together (which the deceased paid for) and socialised together on weekends.

From October 2009, the deceased paid the Plaintiff $1,800 a month. This made up the shortfall between what the Plaintiff made from her part time employment and her living expenses. The Plaintiff and the Deceased otherwise kept their finances separate. The only common financial commitment was the lease of a ‘shack’ at Naval Base.

The Estate and the will.

The Deceased’s estate comprised various properties and a Superannuation fund. The net estate was agreed (at trial) to be worth “between $2,046,307.57 and $2,111,302.50” (the value being dependent upon what various properties would sell for).

The Deceased made a ‘home made will’, he gifted the various properties to his neice and nephews. He divided the residue between the Plaintiff and his neice and nephews. However, the main asset forming the residue was his self managed super fund. The super fund’s main asset was a property that had negative equity.

The result was that there was effectively no residue. Although it is not clear from the judgment, it is apparent that the Plaintiff did receive one of the properties owned by the Deceased. This is to be inferred from paragraph 39 of the judgment where it is stated that “As the will is presently structured she will receive an amount of $400,000.”

The Decision.

Was the Deceased the De facto spouse of the Deceased?

Master Sanderson found that the Plaintiff was not the de facto of the Deceased. He stated : “In this case although I would accept there was a degree of mutual love and affection between the parties their relationship does not seem to me to have been ‘marriage like’. They did not live together, they did not intermingle their finances (save with respect to the Navel (sic) Base shack), and they appear to have had a significant degree of independence.”

There were a number of interesting aspects of this case:

1) The Defendant did not cross examine the Plaintiff on her claim that she was the de facto of the Deceased (she of, course, had no doubt that she was). The Master commented that this was a ‘bold forensic decision’ on the part of counsel for the Defendant. He went on to say (at para 12) : “At the time I was surprised; in retrospect it was a wise decision. As counsel for the first and second defendants said in his closing submissions the evidence of the plaintiff spoke for itself. Nothing would have been gained by counsel cross-examining the plaintiff when he had no conflicting evidence to advance. An acrimonious exchange would have been in no one’s interests. In the brief time she was in the witness box it did not appear as though the plaintiff was the type of person who would have crumbled under cross-examination.”

2) There were other proceedings on foot between the Plaintiff and the First Defendant (as Executor of the Deceased’s estate). In those proceedings the Plaintiff had pleaded she was the de facto of the Deceased and this had been admitted by the Defendant in his defence. On that issue, the Master said: “The admission made by the first defendant is neither here nor there in the other action let alone in these proceedings. Moreover, in these proceedings the question of whether or not the plaintiff was the de facto partner of the deceased goes to jurisdiction. If she was not the deceased’s de facto partner then there is no jurisdiction to make an award. An admission by the first defendant cannot serve to enliven a jurisdiction which does not exist.”

3) At para 20, the Master said: “In determining whether or not a de facto relationship exists the decided cases are really of little assistance. Reference was made to the decision of Harper J in Sinclair v Forsyth [2008] VSC 250. In that case the plaintiff and the deceased did not live together and appear not have intermingled their finances. Yet his Honour found they did live in a de facto relationship. But the case was significantly different to this one. The relationship was far closer and far more consistent.”

In the event that he was wrong in reaching the conclusion that the Plaintiff was not the de facto of the deceased, the Master went on to consider whether the provision made for the Plaintiff was adequate and proper. That is did she meet the jurisdictional threshold test?

The Master considered the respective positions of the parties. I summarise those as follows:

a) The Second Defendant stated his net assets to be just under $200,000.00. The deceased had operated an earth moving business with the second defendant and this had suffered from the current economic downtown. The value of the business was uncertain. The second defendants assets were around $2 million dollars but his liabilities similar.

b) The third Defendant put his net assets at around $450,000.

c) The fourth Defendant, with her husband, had net assets (in the form of equity in their home) of about $700,000 and superannuation of $600,000.

d) The Plaintiff’s financial and personal circumstances were summarised (at para 27 ) as: ” As at the date of trial she is aged 62. She was the sole owner of the property in Noranda which was valued at around $700,000. As at the date of death of the deceased she was working in a permanent part-time position three days a week. She had held that position for some 17 years. As at the date of death of the deceased she was earning a net amount of $2,400 per month from her employment. She had superannuation in an amount of $72,000 and owned parcels of Telstra and Bank of Queensland shares valued at $4,500. She owned a motor vehicle valued at $13,000. The Noranda property was mortgaged in an amount of $80,000.”

More succinctly, her net assets at the date of trial ‘were approximately $506,500.’

Counsel for the Plaintiff and the Defendant (not surprisingly) summarised the proper approach to be taken when the claimant is the widow of the Deceased differently.

Counsel for the Plaintiff cited cases that reflected the New South Wales postion (see paras 34-35) citing Graham v Graham [2011] NSWSC 504 and Hertzberg v Hertzberg [2003] NSWCA 311.

Counsel for the Defendant (see para 36) said that the case should ‘be considered in the context of contemporary community standards of modern Australia. That must involve an analysis of the relationship…”

The Master said (para 37 to 38):

“37 With respect to counsel I am not sure either of the two formulations of principle accords with the law in this State. It would appear the New South Wales approach to claims by a widow have not been reduced to the formulations suggested by counsel for the plaintiff in this jurisdiction. That said there is really nothing in that formulation which is at odds with general principles. But each case must depend upon its own circumstances. Those comments apply equally to the statement of principle advanced by counsel for the first and second defendants. It has always been the case the nature of the relationship between the parties is one of the factors to be considered in determining whether or not the jurisdiction question is answered in favour of a plaintiff. Whether there is some ‘moral obligation’ on a deceased to provide for a plaintiff or whether the proper view is an assessment must be made in light of ‘community standards’ is the subject of debate.

38 In the end it is a matter of fact as to whether adequate provision has been made for a plaintiff. But in determining that fact certain value judgments must be made. That really means nothing more than looking at all the surrounding circumstances to determine whether or not the jurisdiction question is answered in the plaintiff’s favour.”

The Master concluded that the Plaintiff failed the jurisdictional test.

Some Observations

The Master’s comment that it was for the Court to decide whether the Deceased and the Plaintiff were in a de facto relationship highlights the fact that it is not to the point whether the Plaintiff or Defendant believed that such a relationship did or did not exist between them. Parties may expressly disavow (and commonly do) the existence of a de facto relationship but are found to be in one by the Court. It is not the subjective opinion of the parties but the objective opinion of the court that matters.

One can, however, sympathize with anyone who wonders whether or not they are in a de facto relationship, particularly given the apparently different conclusions that might be drawn from the circumstances in which the issue falls for determination. So, for example, for Centrelink purposes most people assume that if they maintain separate residences they are not ‘living in a marriage like relationship’. Other people adopt the view (presumably from the Centrelink interpretation) that if they live with someone for 6 months then ‘that’s a de facto relationship and an equal division of assets would occur should the parties separate’. Then, of course, there is the Superannuation Death Benefit context where a de facto relationship seems to be found merely on the say so the surviving contender.

The case highlights that the nature and extent of a ‘common residence’ (factor 2c) of Section 13A of the Interpretation Act remains a critical factor in determining whether the parties truly are in a marriage-like relationship. It is not to the point that some married couples live apart: married couples in a committed relationship live in the same premises unless it is, as a matter of practicality (work, illness etc) impossible for them to do so. They certainly don’t maintain separate residences (who can afford that?).

Putting aside the issue of whether the claimant was the de facto, the claim would have failed anyway. This seems to reinforce the impression that Plaintiffs cannot assume their claim will be successful.

Postscript: perhaps unsurprisingly, an appeal has been filed.

This entry was posted in Uncategorized on October 12, 2017.

Who gets Mum or Dad’s personal items?

Fri, 22 Feb 2019 21:37:01 GMT

Somebody dies (Mum/Dad). They have a will. It says: “I give my household contents (or personal items) to my children to be divided equally between them” (or ‘to divide my estate equally between my children’).

But there is a problem: Mum/Dad was married for a second time or in a de facto relationship with some else when they died. This person was living with your Mum/Dad for, say, ten years before Mum/Dad died. They say that most of the items in the house were bought whilst your Mum/Dad were living with them. You think that your Mum/Dad bought most of the items because the other person had no money.

Who gets what?

This issue recently cropped up in a court case in Western Australia.Lafferty v Waterton The particular argument was whether some valuable antiques and furniture belonged to the Deceased person or had belonged to their previously deceased spouse.

At paragraph 18 the court said:

“Personal property may be owned jointly, with the consequence of survivorship on the death of one joint owner. It is a question of fact for each item whether it was acquired as the individual property of one or the other of the parties to the marriage, or was jointly owned, or even owned in common (with no right of survivorship). With general household items, it might be inferred, in the absence of contrary evidence, that they were owned as joint property. The items in question, however, are antiques and such an assumption might not reflect the facts.”

“general household items” probably include cutlery, crockery, sofas, televisions etc. These would be considered to be jointly owned unless there was evidence to the contrary. For example, if somebody bought Mum/Dad the item for their birthday/xmas present.

Jewellery would not be considered jointly owned.

A sting in the tail.

A sting lies in the words “It is a question of fact for each item”. This means that, if there is a dispute, the court would have to decide whether each particular item was jointly owned (by Mum/Dad and the new partner) or owned just by Mum/Dad. An expensive process, probably far more expensive than the item itself.

This entry was posted in Uncategorized on October 21, 2017.

Testamentary Capacity

Fri, 22 Feb 2019 21:36:32 GMT

Does a ‘mild cognitive disorder’ make a will invalid?

This question arose in the case of Tandy v Glaskin that was determined by the Supreme Court of Western Australia on the 25th October 2017.

The Facts

Frank Cox married Eunice Cox in 1990.

It was the second marriage for both of them. Frank had two adult children from his first marriage, Eunice had six.

They lived, it seems, happily ever after. Eunice died in 2014, Frank in 2015.

In 2009, Frank was aged 83. He had medical issues. In September that year he was reviewed by a geriatrician. He was diagnosed with a ‘mild cognitive disorder” (Alzheimer’s). He scored 20 out of a possible 30 on a Mini Mental Examination Test.

Following this diagnosis, Frank and Eunice decided to see a solicitor to prepare wills. They attended upon a solicitor within a week. They saw the solicitor together. At that time the solicitor had about 6 years experience. He had only prepared “about 12 to 15” wills up to that time. He had not seen the geriatrician’s report. There was nothing that led him to suspect that Frank might not have capacity. The wills themselves were perfectly straightforward. Frank left his estate to Eunice (if she survived him) and to divide everything between all their children if they did not. Eunice’s will was the same. There were, three slight differences between their wills: Frank appointed a different substitute executor (his daughter), gave a gift of $5,000 to a grandchild and had different burial directions than Eunice.

In the years following the making of the wills, Frank’s medical condition continued to deteriorate (as is the nature of Alzheimer’s disease. After Eunice died he went into a nursing home.

Although Frank and Eunice had enjoyed an happy second marriage, tensions had arisen between their respective groups of children. Their were proceedings in the State Administrative Tribunal and attempts to manage Frank’s affairs through an Enduring Power of Attorney.

If Frank was found not to have capacity when he made his will, then he would have died intestate and his estate would be divided between his two children (there being no earlier will). That, of course would have been a good result for his two children but not so much for Eunice’s six children, particularly since Eunice had left all her estate to Frank.

After Frank’s death, his daughter lodged a caveat at the probate office to stop a grant of probate being made. The Executor named in Frank’s will (interestingly one of Eunice’s children) had to commence proceedings to ‘prove the will in solemn form’.

Relevant Law

Order 73 rule 15 of the Supreme Court Rules provides for a specific procedure whereby a person can object to probate of a will being granted by indicating that they only intend to cross examine witnesses (as distinct from calling their own witnesses). If they adopt this procedure (and the court pronounces for the validity of the will) then they will not be liable to pay the estates costs of proving the will.

Although the solicitor who prepared the will had no recollection of his meeting with Mr & Mrs Cox, he had seem them both for forty minutes. He had prepared drafts that he had posted to them. When they cam back (two days later) to sign the wills, he had read them over to them before they both signed them.

The geriatrician gave evidence that the poor result on the MME test would not preclude Frank from having the necessary capacity to make a will.

The Decision

The court found that Frank did have capacity. Although the objector did not have to pay the estates costs, she nevertheless had to pay her own.

This entry was posted in Uncategorized on October 27, 2017.

The unsent text will on an iPhone.

Fri, 22 Feb 2019 21:35:34 GMT

There was a great deal of publicity about the recent case where the court found that an unsent message on an iPhone was held to be an informal will and to take effect as a valid will.

Here is a link to an article that explains why it is not a good idea to prepare a will that way and what is involved in having the will admitted to probate: Unsent text will

If you have a legal problem concerning an informal will, please ring me to discuss.

This entry was posted in Uncategorized on October 28, 2017.

How do I revoke an Enduring Power of Attorney?

Fri, 22 Feb 2019 21:35:12 GMT

Put it in Writing

You can revoke, or cancel, a Power of Attorney by giving your Attorney a written notice saying that his or her power has ended. Also, you may make a new Power of Attorney that states your previous Power of Attorney is now revoked (but you must still notify the previous Attorney of the revocation). Third parties (e.g., people or organisations that have been dealing with the Attorney) must also be notified. Additionally, if your Power of Attorney is registered at Landgate you must also register the revocation.

Note that if you fail to inform your attorney of the revocation, your Attorney can legally continue to make decisions on your behalf.

This entry was posted in Uncategorized on October 29, 2017.

How do I get a copy of a will?

Fri, 22 Feb 2019 21:34:47 GMT

There is no automatic right to get a will in Western Australia.

If some dies and you are not sure whether you are a beneficiary of the will or not, how then do you get a copy of the will?

This situation might arise, for example, if you were an (adult) child of the deceased and want to know if you have been left anything in the will. If you have not, then you may wish to bring an application under the Family Provision Act.

In other States there are specific provisions that make it an obligation of the executor of the will to provide a copy of the will to persons who would usually be expected to be a beneficiary under the will.

In Western Australia, the usual practice is to write to the executor and request a copy. Properly advised, the executor should make a copy available to a person who would normally be expected to be a beneficiary under the will.

However, if there is no response (or no proper response) then one possibility is to lodge a caveat at the probate office to prevent an application for probate being made (if you are contemplating this step, you should seek legal advice and do it as soon as possible after someone dies).

This situation arose in the case of Chapman v Garrigan.

In that case, the court said:

“This is one of those areas where practitioners should exercise common sense. It is difficult to envisage any circumstance where it would be inappropriate for a party who may have an interest in an estate to be denied a copy of the will. Even if a potential beneficiary were to object to that course of action the named executor would be justified in providing a copy of the will upon request. Of course discretion would apply. A party who does not have and could not conceivably have any interest in the estate should not have access to the will. But otherwise the administration of estates would run more smoothly if access was provided as a rule rather than as an exception to some assumed rule.”.

In that case, the executor refused to give the a copy of the will to a person who was an adult son of the estate. The son expected to be a beneficiary of the will, whereas in fact he had been left out of it altogether. Through his solicitors he lodged a caveat against probate being granted. The executor made an application for proof of the will in solemn form (which means that he initiated legal proceedings to have the will admitted to probate). That application was not opposed by the son (who could then get a copy of the will through the probate registry). The executor sought an order that the son pay its legal costs to have the caveat removed. The court declined to make that order on the basis that a copy of the will should have properly been made available to the son in the first place.

This entry was posted in Uncategorized on November 24, 2017.

Superannuation Death Benefits and being an Administrator

Fri, 22 Feb 2019 21:34:18 GMT

In a decision handed down recently (Burgess v Burgess [2018] WASC 279) the Supreme Court of WA has affirmed the application of the Queensland case of McIntosh v McIntosh 2014 QSC 99.

The case involved the widow of a man who died intestate with two young sons. Death Benefits (including large insurance components) were paid by various super funds. One payment was received prior to Letters of Administration being obtained. However, a payment of $338,000 was payable after Letters of Administration were obtained to the widow personally. A further amount of $160,000 was also expected to be paid from a third Super Fund (AMP).

The widow (Mrs Burgess) applied to the court (naming herself as a Plaintiff and one of the Defendants) seeking orders to the effect that she did not have to account to the children (represented by the Public Trustee) for the funds that she had or would in the future receive. The Public Trustee neither opposed nor consented to the application. Mrs Burgess’ counsel sought to distinguish the case of McIntosh, essentially on the grounds that because she had disclosed to the various Super fund trustees that she was applying for payment of the death benefit personally and was also the Administrator, that no conflict arose.

Justice Martin did not accept this. He said (Para 84):

In an age of increasing moral ambivalence in western society the rigour of a court of equity must endure. It will not be shaken as regards what is a sacred obligation of total and uncompromised fidelity required of a trustee. Here, that required the administrator not just to disclose the existence of the (rival) estate interest when claiming the superannuation moneys in her own right from the fund trustee.

He also said (para 86):

Nor am I persuaded, much as I personally do sympathise with her position as a sole parent left looking after two young boys, that it is appropriate to excuse a breach of trust to relieve her from personal liability (in effect, towards her children at some possible time in the future) – in circumstances where she has legally acquired the Camillo property for $320,000 (and associated costs) and continues to hold that property legally and beneficially.

The widow used most of the $338,000 that she had received to buy a house for herself and the children to live in. The court said that Mrs Burgess must account to the children for this and declared that part of funds used to buy the property were impressed with a trust for the benefit of the children.

This decision has profound ramifications for anyone practising in this jurisdiction: if you are the Administrator of an estate and you receive death benefit personally from a Super Fund YOU HOLD THOSE FUNDS FOR THE BENEFICIARIES OF THE ESTATE. Period. If you are the financial dependant of the deceased (such as his or her de facto or spouse) and there is no Binding Death Benefit in place and you wish to claim a superannuation death benefit then you should NOT act as the administrator. This will present problems if there are other matters that require urgent attention (for example, to close a bank account or sell a property). The loop hole (and one could argue inconsistency) is that you delay making the application for Letters of Administration or probate until after the Super fund has made a decision about where to pay the death benefit (this can take many, many months) and the Super fund decides to pay it to you then you can apply for Letters of Administration/probate and you do not have to bring the funds into account (and have to pay a portion to any of the other beneficiaries of the estate).

The usual accoutrements were provided by his honour: advice to make a will, have a clause in that will that excuses the executor from any conflict of interest arising from receiving a death benefit personally and/or make a binding death benefit nomination.

This entry was posted in Uncategorized on October 14, 2018.