Obtaining a Grant of Probate can be a complicated process if you do not know the process, what to look for and how to correctly complete the forms.
I have prepared a brief step-by-step workflow that should be followed in most circumstances:

1. Obtain the original will and the original death certificate. It is important to scrutinise both documents and identify any issues which could hold up Probate. For a list of common requisitions, please see the Queensland Courts website.  If there is no Will, you should contact a solicitor and obtain legal advice before proceeding.
2. Prepare your advertisement.  It is important that you use the correct wording otherwise your application could be requisitioned. A solicitor can ensure that the wording is correct and this will also help protect the Executor’s interests.
3. Advertise. Place your advertisement in the Public Notices section of the daily paper where the deceased last lived and in the Queensland Law Reporter.
4. Notify the Public Trustee. Give a copy of the advertisement to the Public Trustee by post, fax or deliver the notice in person.
5. Wait for 2 weeks. It is important that you wait for two weeks after the last advertisement appears to give others time to object. If there is chance of objection to the application, you should contact a solicitor and obtain legal advice.
6. Prepare your Application. Prepare the Court documents for application (including your Application for Probate and Supporting Affidavit material). It is extremely important that these documents follow the correct procedure, otherwise the Court may requisition your application.  Please note, if there is an issue with the will or the death certificate you may need to file additional documents. A solicitor experienced in probate and estate law can help you with this.
7. File your Application.  You then need to file the application and supporting documents at your Supreme Court registry.

If you require assistance with obtaining a Grant of Probate (or Letters of Administration where there is no Will), and/or administering a deceased estate I would be more than happy to assist.  Please do not hesitate to contact me.

Having a Will is one thing but having an up-to-date Will is another matter completely!   Whilst I find that there is a general reluctance amongst people to make a Will in the first instance, I find people are even more reluctant to review and update it.  Further, a lot of people do not see the need to review their Wills or, continually put it on the never ending “to do list”.

The fact is, circumstances and relationships change and this will have an impact on your Will. Unfortunately, case law shows that challenges to Wills are on the rise and in a lot of circumstances, could have been avoided by simply reviewing and updating the existing Will.

Generally, I recommend that people review their Wills every two or three years or whenever a major event occurs in their family, their assets or the taxation laws. Regular review of your Will ensures that it is up to date with your life and also current legislation.

Whilst there are many circumstances in your life that may trigger the need for a review of your Will, the following should prompt you to contact a solicitor and discuss updating your Will:

• If you change your name, or anybody named in the Will changes theirs;
• The purchase or sale of a significant asset;
• The death of a family member or of people you have nominated as executors or beneficiaries in your Will;
• The birth of a child or grandchild;
• Marriage or divorce; or
• An inheritance or significant change to your financial circumstances.

If you need to make, update or review your Will it is important to do it properly and with the correct legal advice.  Please do not hesitate to contact me if you require assistance in this regard.

I am often asked by clients for assistance with claiming a deceased relative’s superannuation monies.

In most instances, a superannuation death benefit claim is lodged by the partner, child or next of kin of the deceased.

Once a claim has been submitted, the Trustee of the superannuation fund will usually have the discretion to pay any benefits to the following (depending on whether or not a binding death nomination is in place):

1. The deceased’s Estate (in which case the superannuation death benefits will be distributed in accordance with the Will of the Deceased.  If there is no Will, then the monies will be distributed in accordance with the rules of intestacy which apply if the Deceased had no Will); or
2. The person claiming the superannuation death benefit; or
3. Any other people who were financially dependent on the Deceased.

When making their decision, the Trustee will also consider, among other things:

1. The claimant’s relationship with the Deceased;
2. The claimant’s financial circumstances;
3. The claimant’s level of financial and non-financial interdependence with the Deceased.
4. Any other parties who wish to claim an entitlement to the Deceased’s superannuation.

It is important that if you are thinking about lodging a superannuation death benefit claim that you:

1. Submit the correct supporting information;
2. Consider whether any other parties may also claim the death benefits;
3. Consider the time limits which may apply to object to any decision of the Trustee.

Should you have any questions on superannuation death benefit claims, or should you require assistance with lodging a superannuation death benefit claim please do not hesitate to contact me.

A client of mine was recently approached by his brother to sign a one page form which would allow the brother to receive his Deceased mother’s superannuation death benefit payment in full.

The background is as follows:

1. My client’s mother chose not to leave a binding death benefit nomination on her superannuation monies before she passed away;
2. My client’s brother (who did not like my client), advised my client that he would lodge the claim on behalf of both himself and my client, and when the monies were received, it would be split equally.
3. My client’s brother then lodged the superannuation death benefit claim (without providing a copy of the completed claim form to my client).
4. The Trustee made a decision to pay 100% of the monies to my client’s brother.
5. My client’s brother asked him to sign a form agreeing that he had no objection to the payment.

As a result, I recommended to my client that:

1. By signing the form, he would be agreeing with the Trustee to pay 100% of the superannuation monies to his brother, and would have to rely on the word of his brother to split the monies.
2. He and his brother should both lodge separate claims, or joint claim to protect their respective interests (with both brothers agreeing to claim 50% of the benefits respectively);
3. He should object to the Trustee’s decision and lodge his own claim to protect his interests.

During the objection process, it soon became clear that my client’s brother had no intention of splitting their mother’s superannuation death benefits and intended to claim the entire amount himself.

My client lodged the objection and received 50% of his late mother’s superannuation death benefits.

It is also important to recognize that consideration of your superannuation is an essential element in estate planning.

If you require assistance with objecting to a superannuation Trustee or Board decision to pay a loved one’s death benefits, or need assistance with your estate planning, please do not hesitate to contact me.

When lodging a superannuation death benefit claim, it is important that the material lodged provides information regarding the financial and non financial interdependency between the Deceased and the person claiming the Deceased’s superannuation monies (the “claimant”).

Some of the considerations of a superannuation trustee or board when determining the level of interdependency include:

1. The relationship between the Deceased and the claimant;
2. Any shared finances between the deceased and the claimant;
3. Any financial and non financial support being provided by the Deceased to the claimant;
4. Any living arrangements and shared household expenses between the Deceased and the claimant;

It is important that when lodging a superannuation death benefit claim, a person correctly demonstrates the level of interdependency between the Deceased and the Claimant, with the appropriate supporting documentation.

Superannuation is critical when considering your estate planning, so as to avoid the risk of claims, and to ensure your estate is distributed in accordance with your wishes.

If you require assistance with proving the level of interdependency in a relationship with a loved one who has passed away, please do not hesitate to contact me.

You may recall my recent blog post about documenting your intentions correctly. In that blog, I gave a brief overview of the recent Queensland Supreme Court decision of Gamer v Whip [2012] QSC 209 (30 July 2012).

In that case, the Court had to consider whether a document signed by a beneficiary was an informal codicil, a renunciation of a beneficial interest in another person’s will or an assignment of an interest in an Estate.  The Court ultimately decided that the document was an assignment of an interest, but only after much discussion surrounding the wording of the document. I have discussed the three issues considered by the Court further below:

The Issues to be Considered

1. Was the document an “informal codicil”?

An informal codicil is, for example, informal writings found after death (such as a note of items dated and signed by the testator).  These type of documents are not recommended as they are usually found not to be legally binding.  For a document to be legally binding, it must comply with the execution requirements contained in the Succession Act.  However the law also allows the Court to dispense with these requirements, where the document purports to state the testamentary intentions of a deceased person.

In this case, the Court considered whether the document showed the testamentary intentions of Ms Page.  The Court found that, despite the use of the word “bequeath”, Ms Page’s intention from the document and by her sending it to the executor, was to give her share of Ms Atkinson’s estate to Ms Christiansen and Ms Jensen rather than herself.

2. Was the document a “disclaimer” or “renunciation?

The Court conceded that the use of the word “relinquish” may suggest, at first glance, that the document is a disclaimer however was not satisfied that the whole document constituted a disclaimer.  The Court was also not persuaded that the document was a renunciation based on Ms Page’s intentions for the share to go the other named beneficiaries.

3. Was the document an “assignment”?

The Court considered whether Ms Page had intended to assign her beneficial entitlement on the basis that she had done everything necessary to effect such a transaction (by putting it in writing, having it witnessed by a JP and giving express notice to the executor).

Seek Legal Advice

The matter is an important reminder to seek proper independent legal advice when contesting or disputing a Will. It also shows the need to consult an experienced estate planning solicitor when you want to amend your will.

If you require assistance with making a new Will, or updating an existing Will, or if you are a beneficiary or executor of an estate, it is important to obtain experienced advice.  Please do not hesitate to contact me if needed.

I recently read the Queensland Supreme Court decision of Gamer v Whip [2012] QSC 209 (30 July 2012), in which the Court had to decide whether a particular document was an informal codicil to the deceased’s will, a renunciation of a beneficial interest in another person’s will, or an assignment of an interest in an Estate. It highlights the importance of correctly documenting your intentions to avoid a challenge to a Will.

Background

The facts of this case are as follows:

• Prior to her death, Ms Atkinson left a detailed will leaving a specific percentage of her estate to Ms Page and other parts to Janet Christiansen and Monica Jensen. Ms Atkinson passed away on 26 October 2011 and Probate was granted.

• When Ms Page found out she was a beneficiary of Ms Atkinson’s will, she was very ill and frail.  Accordingly, she decided to write to the Executor of Ms Atkinson’s will, advising that she would like her share to go to the other two beneficiaries.

• The Executors of Ms Page’s estate brought the matter to court for determination and submitted there were 3 possibilities:

1. That the document was an informal codicil to Ms Page’s Will; or
2. That the document constituted a “disclaimer” or “renunciation” of Ms Page’s entitlement under Ms Atkinson’s will; or
3. That the document was an “assignment” of Ms Page’s interest in Ms Atkinson’s estate.

• Ms Page’s step-son (a minor and beneficiary of Ms Page’s Will), argued that the document should form part of Ms Page’s estate.

The Courts Decision

After consideration, the Court decided that the document was not an informal codicil or a disclaimer or renunciation.  The Court found that the Ms Page intended to assign her interest in Ms Atkinson’s estate to the other named beneficiaries.

Seek Legal Advice

The matter is an important reminder to seek proper independent legal advice when contesting or disputing a Will. It also shows the need to consult an experienced estate planning solicitor when you want to amend your Will.

If you require assistance with making a new Will, or updating an existing Will, or if you are a beneficiary or executor of an estate, it is important to obtain experienced advice.  Please do not hesitate to contact me if needed.

If you are involved in a dispute over a will, or challenging a will, the case of Catelan v Herceg [2012] QSC 320 (25 October 2012) will be of interest. The Court had to decide whether to allow an application from the Executor to dismiss a claim from a wife for further provision from an Estate.  The decision highlights the importance of regularly reviewing and updating your Will to avoid family members contesting your Will.

Background – Challenging the Will

• The deceased passed away leaving a substantial estate (estimated between $27 – $60 million);
• He left a will leaving his furniture, art works, house and contents and the sum of $2 million to his wife (whom he had been married to for 4 years);
• His wife cared for him whilst his illness deteriorated rapidly and they lived a “comfortable” lifestyle;
• Leading up to his death, he spoke with his lawyers about amending his will to give further provision to his wife (including his companies) which resulted in a draft will being drawn up, but never signed;
• The wife challenged the will on the basis that she had not been adequately provided for (despite having received more than what she was originally entitled to from the first will);
• The executor of the will made an application to the court to have the wife’s challenge “dismissed”.

Contesting the Will – Grounds for Dismissal

The executor argued that the challenge to the will should be dismissed because:

• The marriage was relatively short – they had only been married for 4 years;
• The fact that the second will had not been signed indicated that the deceased did not intend his wife to receive further provision than what he had already provided her;
• The wife did not “need” the further benefit as she had already been provided assets worth $4.5 million which is “adequate” provision for her.

The Courts Decision

In coming to a decision, the Court stated:

• The shortness of the relationship should be seen in perspective – the only reason their marriage was cut short was because of the death of the deceased from an illness diagnosed after the marriage, and the fact that the wife had cared for the deceased until his death;
• The fact that a second will had been produced suggested that the deceased intended to make substantial further provision to his wife;
• Whilst the wife was well-established financially, there was the issue that she could not presently meet her personal outgoings.

In light of the above, the court was not satisfied that the executor had established a “prima facie” case for the wife’s application for further provision to be dismissed.

The wife’s dispute to the will has not yet been finally determined.  We will wait to see how the Court’s deal with this contest about the will.