“You never know anybody until you’ve shared an inheritance with them”
Challenges to Wills are far less common than challenges to estates. A Will can be contested or challenged when it is alleged that :
The Will was executed under undue influence from others;
The Will was executed when the testator lacked capacity to understand what he/she was doing. This is increasingly common due to the rise of dementia in our ageing population;
Failing to keep your estate planning documents safe can cause major complications, for you and your family.
In South Australia, the simple form of Probate, known as a Grant of Probate in Common Form requires production and surrender of the Last Will and Testament of the deceased. This means that the original signed document must be located as a matter of priority. Otherwise the executor may not be able to deal with the assets of the deceased.
If the original Will cannot be located, the situation may not be hopeless. A different form of Probate, called a Grant of Probate in Solemn Form, may be attempted with a draft or copy of the last known Will of the deceased.
Modern relationships are fraught with tension and complexities when it comes to finances. Looking ahead to the time when you and your partner are established in your careers and have accrued considerable assets, it makes sense to want to protect what is yours should the relationship end.
Australian Census data from 2011 shows that the married proportion of the total population has been falling. It is no longer the case that a majority of the population is married. Not so long ago the married proportion was as high as two-thirds of the entire population during the mid-20th century. In 2011, this has dropped to less than half., and the relative divorce rate in Australia remains one of the highest in the world.
Western Australian Supreme Court Master Craig Sanderson has publically stated in a 2014 judgment that “Homemade Wills are a curse,” and inevitably lead to protracted and expensive legal battles in family disputes involving substantial estates.
Master Sanderson said the legal issue around the proper determination of the deceased’s Will could have been avoided if he had “consulted a lawyer and signed off on a Will that reflected his wishes”.
Master Sanderson warned of the dangers of homemade Wills, saying there was no question that engaging a properly qualified and experienced lawyer to draft a Will was “money well spent”.
“But where, as here, the estate of the deceased is substantial, the Will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone.”
This view is supported by Rod Genders, who is a senior Australian lawyer specialising in trusts, Wills and estate planning, accident compensation, probate and deceased estate administration in Adelaide and throughout South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia.
An increasing number of Baby Boomer parents are concerned about leaving unconditional bequests in their Wills to their grown-up children, for fear that they will squander their inheritance.
As parents we love our children and want them to receive the benefit from our hard work after we’re gone.
However, some kids just seem to attract hard luck and trouble, don’t they? They can be immature, have difficulty holding a job, or are just poor money managers. Some develop a bad and expensive habit, like gambling, drugs or alcohol, while others suffer mental illness.
Then there are the risky-business kids, who constantly fear the door-knock from the bailiffs because they run their businesses on the knife-edge of bankruptcy and litigation.
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Importance of Pet Trusts
