Rod Genders is a senior Australian lawyer specialising in Wills and Estate Planning, Probate and Estate Administration, Trusts and Guardianship and Inheritance Claims and Contested Estates in South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is an international author and speaker. Rod is the 3rd generation of Genders in the law and has been practising specialised law since the mid 80’s. For over 10 years he served on the Council of the Law Society of South Australia and is a senior member of its Succession Law Committee. For 8 years Rod was a founding committee member of the South Australian branch of the London-based Society of Trusts and Estate Practitioners (STEP) and was the founding Chair of the international STEP Digital Assets Special Interest Group. For over 25 years Rod has chaired a private committee enquiring into the affairs of protected persons. He is a member of the Law Council of Australia, a member of the Notaries Society of South Australia and an associate member of the American Bar Association.

Genders and Partners

Granny Napping Set to Rise as Baby Boomers Age

Estate Planning, Trusts & Guardianship, Wills, Wills and Estate Planning
Granny Napping Set to Rise as Baby Boomers Age

Granny napping is defined as the legal movement of an elderly person from one residential location to another, and could include the removal of an elderly person from a nursing home care facility.

The aim of this may be to remove the elderly person from contact with other people such as family & friends, in order to isolate them and to facilitate financial abuse.  The prevalence of granny napping is expected to rise as affluent baby boomers age.

There has been a steady increase of “Elder Abuse”, and a decline in the treatment of vulnerable people in our society. This leaves the assets of the elderly person open to abuse. There have been instances where elderly people have been left to starve as disagreeable, uncaring relatives demand food and money from their elderly relatives.

Houses of elderly relatives have even been sold and the relative has been forced to move out.  This is just the tip of the iceberg when it comes to granny napping and elderly abuse not just here in South Australia, but throughout the rest of Australia, too.

One of the inherent problems in Australian society is the lack of effective communication between siblings and between siblings and elderly parents. Bitter relationships have sometimes developed between these individuals. Elderly people who have not yet succumbed to dementia or other debilitating diseases have even gone so far as making out Wills that only name grandchildren as beneficiaries, in an attempt to bypass their problematic & meddling children.  However this only tends to add even more fuel to the fire when it comes to resolving inheritance issues and often leads to litigation, which in some cases have involved grandchildren having to give back money to their own parents.

Genders and Partners

Elder Abuse Caused by Lack of Estate Planning

Estate Planning, Planning for Disability and Incapacity, Wills, Wills and Estate Planning

Elder Abuse Caused by Lack of Estate Planning

On 26/02/2014 the UK Court of Protection decided the case of JS –v-  KB & MP .

The Court itself said: “This cautionary tale illustrates vividly the dangers of informal family arrangements for an elderly relative who lacks mental capacity, made without proper regard for:

      i.         the financial and emotional vulnerability of the person who lacks capacity; and

ii.         the requirements for formal, and legal, authorisation for the family’s actions, specifically in relation to property and financial affairs.”

The case concerned a 90 year-old female suffering from a progressive dementia. She had been cared for by her daughter for over three years.  The Court found that “The actual care arrangement is in many ways excellent … [the patient] is receiving devoted care and is reported to be happy. For this, [the daughter] deserve genuine credit.”

Genders and Partners

Treating Your Kids Differently in Your Will

Estate Planning, Inheritance Claims & Contested Estates, Wills, Wills and Estate Planning
Treating Your Kids Differently In Your Will

Family relationships can turn into nasty confrontations when it comes to administering a deceased estate and distributing assets. You may think that the way you have decided to distribute your estate in your Will is fair and even-handed, but your wishes may cause more trouble than they are worth when you die.

You should discuss your wishes with the experienced specialist estate planning team in Adelaide at Genders & Partners solicitors, so that you can find and prevent problems before they tear your family apart.

When you consider creating your Adelaide Will you may have good reasons for treating your children differently. If one of your children is in an abusive relationship with their partner, for instance, you probably will not want the abusive partner to get their hands on any of your assets. This can prove to be a difficult situation, and requires special care and attention. Special provision may have to be made to ensure that your assets are protected.

There are situations when one of your children may have lost his or her job due to no fault of their own and you may wish to allocate more of your assets to this person, knowing that it might be difficult for him or her to find employment. These sorts of decisions may seem right to you but they may seem unfair to another hardworking child who feels he or she has missed out on an equal entitlement to your estate.

Pre-nup Overruled On ‘Needs’ Basis

Asset Protection, Estate Planning
Pre-nup Overruled On 'Needs' Basis

The High Court of England & Wales has nullified a pre-nuptial agreement between a wealthy heiress and her impecunious husband, because the now ex-husband needs GBP1.2 million to re-house himself.

The wife (Victoria), is the 36-year-old daughter of a wealthy businessman, and she had already been given a house by her parents when she married her husband (Francesco) in July 2005.

Even at the time, Victoria’s father thought Francesco was marrying her just for her money. So her father insisted that they sign a pre-nuptial property agreement to protect Victoria’s money and the assets which her father planned to give her on her marriage.  The agreement stated that Victoria’s separate property and family gifts shall remain hers and Francesco shall not make any claim on them.

There was also a reciprocal clause that Victoria would make no claim against Francesco’s separate property, except that it did allow her to pursue him for maintenance if the marriage broke up. Francesco was allowed no such right. This clause proved significant in the subsequent divorce settlement, as it showed (according to Francesco’s lawyers) that the agreement was unfair to him – even though he had had independent legal advice before signing it.

Business Succession Planning

Business Succession Planning, Probate & Estate Administration
Business Succession Planning

Think about how much time and effort you put into building your successful business, and then imagine what would happen to your achievement if you failed to plan for the future.

Without a solid business succession plan in place, your company could quickly crumble upon your retirement or death, resulting in much heartache and potential loss of value for your family members and employees.

Fortunately, the Adelaide estate planning lawyers at Genders & Partners can help you navigate this complex area of law so that you can have peace of mind about the long term future of your business.

What Happens When You Do Not Secure a Business Succession Plan in Adelaide?

Business owners put off creating a succession plan for many reasons. They may fear death and not want to talk about the inevitable. They may also be reluctant to give up control of the business during their lifetime, or they may have difficulty choosing a successor among their children or other family members. Even when it is understood who the successor will be and how the business is to be handled, failure to legally document your wishes often results in contention and costly mistakes.

Genders and Partners

The Importance of Updating Your Will And Estate Plan

Estate Planning, Wills
The Importance of Updating Your Will And Estate Plan

At a minimum, your estate plan includes a Will and some powers-of-attorney. These documents are NOT set & forget. They are snapshots of your intentions at that point in time.

The older these documents are when they need to be used, the greater the risk of a successful challenge to them, when you will not be able to defend your decisions. It’s all about Risk Management.

If you have a proven track record of reviewing and confirming or amending your estate planning documents and keeping them up to date every 3-5 years, there is a much reduced risk of interference with your wishes.

Genders and Partners

What Is A Will Worth?

Trusts, Wills, Wills and Estate Planning
What Is A Will Worth?

Several times each week, my phone rings, and someone asks me the question: “How much do you charge to make a simple Will?”

I always answer honestly, and provide as much detail as I am able.  I try to ask some questions to inform my understanding of their situation.  Some people resist this type of discussion – they think they know what they want, and now are simply shopping on price.

I can’t help those people.  They don’t want what I have to offer.  They aren’t looking for sensible, practical advice.  They aren’t interested in education. They refuse to consider the possibility that they are not asking the right questions. Their minds are closed.

It’s as if they have diagnosed their own illness, and written their own prescription.  They don’t want a doctor to ask them questions or form an independent assessment of their needs.  They just want the pharmacist to fill the prescription with a minimum of fuss and expense.

Best of luck to them, and to their families. I think they’ll need it.