What will happen if I don’t provide for my children in my Will?

Estate Litigation Child Children Left out of Will Estate Lawyer Brisbane Gold Coast Sunshine CoastI often find that when a client wishes to leave their child or children out of their Will, it is because there has been a period of estrangement between the client and their child. Although you are free to distribute your estate however you choose, a period of estrangement between a Will maker and their child is not necessarily enough on its own to negate the child’s right to contest the Will.

For example, in Smith v Public Trustee [2009] NSWSC 268 the Supreme Court of New South Wales found the Will maker was morally obligated to provide for his estranged children in his Will.

Background

The background of the case is as follows:

  1. Mr S made a Will on 27 July 2007, in which he bequeathed his house to his two nephews, and the residue of his estate to the Fred Hollows Foundation;
  2. Mr S appointed the Public Trustee of New South Wales his Executor;
  3. On his death bed the deceased approached his two children and requested to see them. Both children refused to see him and chose to write him letters instead;
  4. Mr S died on 3 August 2007;
  5. Mr S’s two children, Ms M and Mr G, contested his Will for provision from his estate.

Circumstances of the relationship between Mr S and his children

Ms M and Mr G submitted the following background of their relationship with Mr S:

  1. After moving out of Mr S’s house with their mother, Mr S would stalk Ms M and Mr G at their school and church;
  2. Mr S would send Ms M and Mr G abusive letters throughout their childhoods;
  3. Ms M and Mr G were still frightened of Mr S until he passed away, which is why they chose not to maintain contact with him.

What did the Judge consider?

When considering whether to make provision from the estate for Ms M and Mr G, the Judge considered the following:

  1. The personal circumstances of Ms M and Mr G;
  2. The nature of the competing claims for the estate. In this case, the competing claims were Mr S’s nephews, and the Fred Hollows Foundation.

What did the Judge decide?

The Judge found that:

  1. It was understandable that Ms M and Mr G did not wish to maintain contact with Mr S during his life;
  2. Ms M and Mr G would have ongoing financial responsibilities for the foreseeable future;
  3. Mr S’s nephews were not competing claimants as they were not dependent on Mr S and did not see him often when he was alive; and
  4. The Fred Hollows Foundation was a worthy charity; however it did not constitute a competing claim on Mr S’s estate.

Decision

The Judge ordered that Mr G and Ms M each receive a legacy of $150,000.00 from Mr S’s estate.
Ms M and Mr G’s costs for bringing the application were also ordered to be paid from Mr S’s estate.

I want to contest a Will. What should I do?

If you would like to contest a Will, you should contact an experienced estate litigation solicitor. Please contact me should you require assistance or advice.

In the Matter of David Wayne Swan [2014] SASC 65 - A cautionary tale of a charitable trust

Deceased Will Charity gift Estate Planning Lawyer Brisbane Queensland Sunshine Coast Gold CoastI am often approached by clients who would like to leave gifts to charities in their Will. I was interested to read a recent decision of the Supreme Court of South Australia concerning the validity of a gift made to a hospital. The decision confirms the necessity of ensuring the Willmaker’s wishes are clear, and that the possibility that the charity may no longer exist when they pass away is adequately addressed.

Background

 

The background of the case is as follows:

  1. Ms B made a Will in 1971 which, among other bequests, granted a life interest in her property, including her household items, to her son, Mr B. The remainder interest in the property was bequeathed to “the Hospitals Department”, a department of the South Australian government at the time;
  2. The balance of Ms B’s Estate was to be held on trust to maintain her property, maintain her son, and accumulate any income for 21 years. The income was then to be distributed to “the Hospitals Department”;
  3. Ms B directed in her Will that upon her son’s death, the residue of her Estate (after payment of her son’s funeral and headstone expenses) was to be distributed to “the Hospitals Department”;
  4. Clause 8 of Ms B’s Will stated that the bequests to “the Hospitals Department” were to be utilised by the “Director General of Medical Services” for “the benefit of sufferers from kidney diseases or complaints”;
  5. Ms B passed away in 1974;
  6. On 15 October 2009, the trustee of Ms B’s Estate forwarded a cheque for $266,435.40, being the residue of her Estate, to the “SA Health Commission”;
  7. The “Hospitals Department” was no longer a department of the South Australian Government, as it had been at the time Ms B made her Will;
  8. The “SA Health Commission” has also ceased to exist;
  9. Mr S, the Chief Executive of SA Health, sought an order that on its construction, clause 8 of Ms B’s Will established a charitable trust, and that the Court should approve a trust variation scheme to give proper effect to the terms of that charitable trust;
  10. Ms B is survived by her daughter-in-law, and her daughter-in-law’s sister.

What did the SA Health submit?

 

SA Health submitted the following:

  1. Ms B’s Will was effective to create a charitable trust;
  2. If the gift to SA Health failed, it would result in an intestacy of the residue of Ms B’s Estate;
  3. That the gift of the residue of her Estate was valid at the time of Ms B’s death;
  4. That Ms B had exhibited a charitable intention, and therefore a charitable trust;
  5. That want of appointment of a trustee does not affect the validity of the charitable disposition, and that the Health Services Charitable Gifts Board would be a suitable trustee.

What did Counsel for Ms B’s surviving family members submit?

 

  1. Counsel representing Ms B’s daughter-in-law, and her daughter-in-law’s sister, submitted that if her clients were to have no entitlement upon intestacy, then the Court must be satisfied that clause 8 of Ms B’s Will enables the Court to find that Ms B expressed a general charitable intention;
  2. In the event that the Court found a general charitable intention, then the Court must be satisfied that effect be given to the intention, notwithstanding that the Hospitals Department no longer exists.

What did the Judge decide?

 

  1. The Judge found that Ms B had expressed a general charitable intention in her Will, and that it was unlikely that she intended the gift to fail in the event that the Hospitals Department no longer existed at the time when the gift was to be distributed;
  2. The Judge found that a charitable trust had been established, and that the gift did not fail;
  3. The Judge ordered a Deed to be drawn up to include the following terms:
  • That the trust funds be applied for the benefit of any patient of a hospital incorporated under the Health Care Act 2008 (SA) who is suffering from kidney disease or complaint;
  • That the trust funds will be used to provide benefits that those patients would not normally receive as patients of those hospitals.

If you are considering leaving charitable gifts in your Will, it is recommended that you obtain the advice of an experienced Estate planning lawyer. Please do not hesitate to contact me should you require assistance.

Can a beneficiary be forced to forfeit their rights under a Will?

Estate Litigation rights to Will Lawyer Brisbane Sunshine Coast Gold Coast QueenslandI was interested to read a recent decision of the Supreme Court of Queensland concerning a man, Mr N, who was found guilty of assisting his friend, Mr W, to commit suicide via drug overdose. Mr N was appointed Executor and sole beneficiary in Mr W’s last Will. The Public Trustee contended that Mr N should not be allowed to administer Mr W’s Estate, as his right to act as Executor arose from his crime. The Public Trustee also submitted that Mr N’s crime meant he had forfeited his right to benefit from Mr W’s Estate.

Background

The common law rule established in Troja v Troja (1994) 33 NSWLR 269 is that a person responsible for the death of another forfeits their rights to benefit from that other person’s Estate.

What did the Judge consider?

The Court considered the following submissions from Mr N:

  1. Mr W made the decision to commit suicide independently, and at all times he knew that Mr N would benefit from his Will;
  2. Mr W was significantly disabled by illness when he took his own life, however there was no evidence that he had lost any mental capacity;
  3. The death certificate provides four causes of death, of which only one cause was a drug overdose;
  4. There was no evidence that Mr N was present when Mr W committed suicide, and his assistance was very remote.

What did the Judge decide?

The Judge found that the forfeiture rule is inflexible and must be applied. The Judge ordered that the Public Trustee be appointed Administrator of Mr W’s Estate, which must be administered according to the rules of intestacy.

If you are concerned about the circumstances in which a beneficiary will receive their benefit from an Estate, you should consult an experienced Estate litigation solicitor. Please contact me should you require further advice or assistance.

Lemon v Lemon & Anor [2014] QSC 123: A new precedent for admitting a copy of a Will to Probate

Paper ShredderI have previously written about what can be done if only a copy of a Will can be located. A new decision has been handed down recently which provides further guidance as to the circumstances in which a copy of a Will may be used to obtain a Grant of Probate.

Background

The background to this case is as follows:

  1. Mrs EB passed away in October 2012. She had predeceased her late husband, Mr RB;
  2. Their daughter, Ms SL, applied for probate in solemn form of a photocopy of Mrs EB’s last Will;
  3. Despite her best efforts to find the original Will, no one in the family had seen the original for over 10 years;
  4. In the last years of his life, Mr RB moved in with Ms SL and showed a tendency to throw away large volumes of documents, photographs and sentimental items. He has also shown these tendencies when he resided with Mrs EB.

What the Court considered

When deciding whether or not a copy of a Will can be admitted to Probate, the Court will consider the following:

  1. Was there actually a Will or a document which evidenced the deceased’s intentions?
  2. Did the Will revoke all previous Wills?
  3. Is there evidence to suggest that the Will has been destroyed to revoke it?
  4. Is there evidence of the terms of the Will?
  5. Is there evidence that the Will was executed?

What did the Judge decide?

  1. The primary concern in this case was whether the Will was destroyed in an attempt to revoke it.
  2. The Judge considered the evidence of Mr RB’s tendencies to dispose of documents and possessions, and found it probable that he had inadvertently destroyed it.
  3. The Judge also noted that there was no evidence that Mrs EB had made another Will, or given the original Will to anyone else for safe keeping.
  4. The Judge also found that the terms of the copy Will were clear, comprehensive and unsurprising, in light of Mrs EB’s family circumstances.
  5. The Judge ordered that the copy Will be admitted to Probate, limited until the original Will or more authenticated evidence of it is brought into and left in the Registry.

I only have a copy of a Will – what should I do?

If the original Will cannot be located, there may be difficulties in administering the Estate. This is why I always ensure that after preparing Wills for clients, I keep the originals in safe custody at my office, to minimise the risk of these important documents being lost or destroyed.

If you are listed as the Executor of a friend or family member’s Will, and only a copy of the Will can be found after the person passes away, you should obtain the advice of an experienced Estate administration lawyer. Please do not hesitate to contact me should you require assistance.

In what circumstances will a Court refuse to re-seal a grant of Letters of Administration from another state?

Letters of Administration Estate Litigation Lawyer Estate Planning Brisbane Queensland Sunshine CoastI was interested to read a recent decision of the Supreme Court of South Australia in which the Court refused to re-seal a grant of Letters of Administration from Victoria (“the Grant”). The Supreme Court upheld the registrar’s discretion to refuse to re-seal the Grant on the basis of a need for uniformity.

Background

The Background of the case is as follows:

  1. Mr GAT died with an informal Will.
  2. Mr GAT’s partner, Ms SV, obtained a grant of Letters of Administration with the Will from the Supreme Court of Victoria. The grant referred to Mr GAT as “Mr. GAT (in the will called JT) also known as JAT”.
  3. Mrs SV later applied to the Supreme Court of South Australia for the re-sealing of the grant of Letters of Administration with the Will to distribute Mr GAT’s property in South Australia. This registrar refused this application.
  4. The Court provided a memorandum stating that the form of the original grant was not in a form the Court would accept. The use of the words “in the will called” and “also known as” was contrary to the Probate Rules 2004 (SA). The appropriate term is “otherwise”.
  5. Ms SV appealed this decision.

What did the Judge Consider?

  1. The Judge summarised that as general rule, a grant of administration in Victoria confers no authority over the assets in any other jurisdiction.
  2. Mrs SV argued that the findings of a court in one jurisdiction are to be given “Full faith and credit”. It was further argued that this goes beyond accepting its existence but “accept and abide by its contents”.
  3. The Judge found that it is at the discretion of the registrar whether or not to re-seal the grant.
  4. However the Judge did consider that discretion of the registrar is to relieve the applicant of further proving facts that have already been proven in other jurisdictions. It is also to avoid undue expense to the estate.

What did the Judge Decide?

The Judge found the registrar did not err in refusing to re-seal the documents. It was at the discretion of the registrar to uphold the importance of uniformity. The Court did find that Mrs SV could apply for an original grant, and directed that a Grant of Probate be made within the Supreme Court of South Australia.

I am an Administrator of an Estate and there are real property assets interstate. What should I do?

If you are concerned your grant of Letters of Administration will not be re-sealed, I strongly recommend you consult an experienced administration solicitor. Please contact me should you require any further advice or assistance.

What happens when an Administrator of an Estate is also a superannuation fund beneficiary? Is there a conflict of interest?

Estate Administration Superannuation Death Benefits Lawyer Brisbane QueenslandI was interested to read a decision handed down on 16 May 2014 by the Supreme Court which has provided guidance on situations where the Administrator of a deceased Estate applies for the deceased’s superannuation death benefits to be paid to them personally.

Background of McIntosh v McIntosh

The background of the case is as follows:

  1. Mr JJ died intestate and did not leave a spouse nor children;
  2. According to the rules of intestacy in the Succession Act 1981 (Qld), Mr JJ’s parents were equally entitled to be appointed Administrator of his Estate, and were also entitled to be distributed his Estate in equal shares;
  3. Mr JJ’s mother, Mrs EM, applied for and was granted Letters of Administration on Intestacy of her son;
  4. Mrs EM applied to Mr JJ’s superannuation funds to be paid his superannuation death benefits, totalling $453,748.69;
  5. On 26 March 2014, Mrs EM filed an application for directions as to whether she was required to account to the Estate for these superannuation benefits;
  6. Mrs EM argued that she should be entitled to retain all of Mr JJ’s superannuation; and
  7. Mr JJ’s father, Mr JM, submitted that Mrs EM should be required to account to the Estate for those monies, which would then be divided equally between him and Mrs EM.

On what arguments did Mr JM and Mrs EM rely?

The Judge considered the following arguments from Mr JM and Mrs EM:

  1. Mrs EM argued that although she agrees that once appointed Administrator, she had a duty to collect and get in Mr JJ’s real and personal Estate, this duty did not stand in the way of her right to compel the superannuation fund trustees to pay Mr JJ’s death benefits to her;
  2. Mrs EM further argued that as the potential conflict between her duty as Administrator and her interest in receiving Mr JJ’s death benefits personally was known before she was appointed Administrator, applying for Mr JJ’s death benefits to be paid to the Estate did not form part of her Administrator’s duties;
  3. Mr JM submitted that Mrs EM, in her role as Administrator, had a duty to collect and get in the assets of Mr JJ’s Estate;
  4. He further submitted that Mrs EM had a duty not to let any conflict of interest occur. He stated that such a conflict had occurred, as she had applied for the payment of Mr JJ’s death benefits to be paid directly to her personally, without also submitting a claim on behalf of the Estate. She had also not informed Mr JM that he, too, could submit a claim.

What did the Judge consider?

The Judge considered the following questions:

1. What are the duties of an Administrator which are relevant to this case?

The Judge summarised that the appointment of an Administrator is made by the Court for the due and proper administration of the Estate and the interest of the parties beneficially entitled to distributions. The Administrator has fiduciary duties to act in the best interests of the Estate and to collect and get in all the Estate’s assets.

The Judge also found that an Administrator of an intestate Estate has a duty to apply for payment of superannuation funds to the Estate.

2. Did Mrs EM apply for the superannuation death benefits to be paid to her personally before or after she was granted Letters of Administration?

The Judge found that Mrs EM did not apply to any of Mr JJ’s superannuation funds for his death benefits to be paid to her until after she was granted Letters of Administration. This means that she had made the applications after she had acquired the duties of an Administrator, as detailed above.

3. Did Mrs EM have a conflict of interest?

The Judge found that there was a clear conflict of interest in Mrs EM applying to the superannuation funds to have the death benefits paid to her personally while she was also acting as Administrator of the Estate.

What did the Judge decide?

The Judge found that the failure of Mrs EM to apply for the payment of the superannuation death benefits to the Estate was a beach of her duty to act in the best interests of the Estate. The Judge ordered that Mrs EM account to the Estate for the superannuation death benefits that had been paid to her personally.

I’m an Administrator of an Estate and I also want to claim the deceased’s super. What should I do?

If you are concerned that you may be in a position of a conflict of interest as an Administrator, I strongly recommend you consult an experienced Estate administration solicitor. Please contact me should you require further advice or assistance.

Distributing a Deceased Estate

distributing deceased estates Lawyer Brisbane Queensland WillsI am regularly contacted by clients facing pressure from relatives and beneficiaries of a deceased Estate to distribute the assets of the Estate as soon as possible.

Should I distribute the benefit of an Estate immediately?

Due to this pressure, some clients believe that as soon as they obtain a Grant of Probate or Letters of Administration of a deceased Estate, they must immediately distribute the Estate in accordance with the Deceased’s will, or if there is no Will, in accordance with the Succession Act 1981 (Qld).

Distributing an Estate in haste, and without obtaining proper legal advice, can potentially result in the Executor or Administrator becoming personally liable for some of the transactions they perform.

What to consider when distributing a deceased Estate

It is important that before distributing an Estate, the Executor or Administrator considers:

  1. Whether anyone has, within six months of the Deceased’s death, indicated that they wish to contest the Deceased’s Estate, or claim further or better provision under the Deceased’s Will;
  2. Whether anyone has made enquiries as to the financial position of the Estate (with a view to potentially contesting the Will or the Estate);
  3. Whether the full assets, liabilities, income and expenses of the Estate have been determined prior to distributing the Estate;
  4. Whether any person or creditor has claimed that the Deceased owed them money;
  5. Whether the Estate is liable to pay any debts of the Deceased, and if so, the priority of one type of payment over another;
  6. Whether there are any suspicious circumstances surrounding the management of the Deceased’s affairs prior to their death (for example by a relative who had power of attorney to attend to the Deceased’s financial affairs);
  7. Whether any beneficiary or potential beneficiary owes any monies to the Deceased and their Estate;
  8. Whether any beneficiaries cannot be located or have passed away;
  9. Whether any beneficiaries are yet to be discharged from bankruptcy.

It is important that any person that is acting as an Executor or Administrator of an Estate considers the above prior to distributing a deceased Estate, and obtains legal advice in relation to the above issues.

If you are facing pressure from relatives or beneficiaries to distribute a deceased Estate, or if you have any questions regarding issues surrounding the distribution or proposed distribution of a deceased Estate, please do not hesitate to contact me.

Living forever through your Estate plan - an interesting new development in virtual existence after death

Estate Plan Virtual Legacy Estate Planning Lawyer Brisbane QueenslandI have written before about who receives your password if you pass away, but I have recently read about new services that are available which take the concept of a virtual legacy to a whole other level.

What options are there for my virtual legacy?

There are companies which offer clients the opportunity to name an “Executor” of their virtual presence, who can access their account information and undertake specified tasks after the client passes away. Some of these services store the information in a “virtual vault” that only the Executor can access.

Another service will send personalised messages from the client to loved ones after they pass away. Distribution of the message is automated when the client does not reply to regular prompts for a password for a pre-determined length of time. There are also numerous online memorial page services available for your loved ones to write messages once you have passed away.

What other options are there?

The most interesting and revolutionary concept I have come across recently involves the client’s social media, photos, location, e-mails and other information being stored with a company, which the client can then modify and shape into a virtual persona. It even comes with a 3D talking avatar of the client. As with other services, the client creates a list of loved ones who will be contacted upon their passing, and those loved ones will be provided with access to the client’s bank of information. The company encourages its clients to spend time making their avatar resemble them as much as possible, so that it will look and sound like the client, even down to using the client’s vocabulary.

Do I really need a virtual legacy?

While it is logistically easier and more practical for the Executor of your Estate to be aware of which banks hold your accounts, which funds hold your superannuation and perhaps what your Facebook and LinkedIn passwords are, a properly formed and implemented Estate plan is much more beneficial to the administration of your Estate after you have passed away than a virtual persona.

What is an alternative to a virtual legacy?

Although there have been a number of recent cases of informal Wills made on iPhones and computers, I would never recommend that a client relies on an informal Will or a virtual legacy instead of a correctly drafted and executed Will. I will be interested to see if a virtual persona is ever used to grant Probate to an Executor, but even the applying for the Court to make such an order would be a great cost to your Estate.

If you have any queries about your Estate plan or making a Will, please contact me.