*The contents in this blog relates to legislation in New South Wales.
Have you thought about making a Will or updating your existing Will? Having more time now during lockdown may be the ideal time to review your current circumstances and ensure your estate planning documents are in order.
Whilst Turner Freeman cannot see clients face to face during the current Covid-19 lockdown Turner Freeman can discuss your estate planning needs with you via telephone or a video conference. Turner Freeman can then prepare the documentation for you and sign the documents via a video conference. Even if you do not have access to video conferencing, Turner Freeman can prepare a Will for you to sign as an “informal” will and then execute the document legally once the lockdown restrictions are over.
It is important to ensure you have a Will in place to enable your assets to be distributed according to your wishes.
Some things to consider when making a Will are who you wish to appoint as your executor (the person who makes your funeral arrangements and deals with your estate after you pass away), whether there are specific gifts you wish to give and who you wish to give the rest of your estate to.
A Will covers your personal estate ie assets in your name such as bank accounts, cars, property and shares. It does not cover superannuation, trusts, companies or jointly owned assets.
If bank accounts are in joint names then the proceeds of the bank account pass to the surviving account holder.
In relation to real property, if a property is owned as “joint tenants” then the property passes to the survivor, however if the property is owned as “tenants in common” then your share of the property passes according to your Will. If you are unsure as to whether you own a property as “joint tenants” or as “tenants in common” Turner Freeman can carry out a search on your behalf to determine the tenancy and then draft your Will accordingly.
People often say why make a Will when it can be contested anyway. Whilst Wills can be contested there are limited grounds on which a claim can be made and someone who wants to make a family provision claim must be an “eligible person” pursuant to the Succession Act 2006, have financial need and must prove their case.
Additionally, when preparing a Will Turner Freeman can also prepare a Statement setting out the reasons as to why you wish to exclude someone from your Will or have made limited provision for someone. If a claim is then made, the Court will take into account the reasons why you have excluded that person.
Family Provision Claims
If you have been excluded from a Will and wish to make a claim on the deceased person’s estate you have 12 months from the date of death to commence proceedings in the Supreme Court of New South Wales. Even whilst in lockdown Turner Freeman can still provide you with legal advice and commence proceedings during this period.
The following people are “eligible” to make a claim on an estate:
- a person who was the spouse of the deceased person at the time of the deceased person’s death,
- a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
- a child of the deceased person,
- a former spouse of the deceased person,
- a person:
- who was, at any particular time, wholly or partly dependent on the deceased person, and
- who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
- a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
In addition to being an eligible person, inadequate provision must have been made for you in the deceased’s Will.
Turner Freeman can review the Will and discuss with you the factors which a Court will take into account in a family provision claim. It is not whether you have been treated unfairly but rather whether inadequate provision has been made for you taking into account your circumstances, the size of the estate and the beneficiaries of the deceased’s Will.