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CASE STUDY:
International Estate Planning

International issues in estate planning are becoming more prevalent in today's global community. It is not just high net worth individuals who have assets or interests outside of Australia... read more

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Case Studies

Probate application – Unsigned will

We successfully applied to the ACT Supreme Court for a special order to allow us to obtain a grant of probate for a will which, on its face, was not legally valid. The testator in this matter had been seriously ill and duly attended a solicitor to have a will prepared. The will was prepared by the solicitor in draft form and sent to the testator. The testator made a number of hand-written changes to the draft will, intending to return to the solicitor to have the changes made and to then execute the will. Unfortunately, the testator's health rapidly deteriorated and he was unable to finalise his will before he died. In the days before his death, the testator verbally confirmed to his son that the draft will incorporating the handwritten changes reflected his wishes for his final will, however, the testator was simply too weak to be able to sign the will and have his signature properly witnessed. We made successful submissions to the Court that the testator's intentions were clear, despite the failure of the will to meet the legal formalities, and the Court made special orders giving effect to the testator's intentions.

 

Probate application - Missing will

We successfully applied to the ACT Supreme Court for a grant of probate where the original will was lost. We were able to produce evidence to satisfy the Court that the will had not been revoked and was valid and the Court ordered that a copy of the will be admitted to probate.

 

International Estate Planning

International issues in estate planning are becoming more prevalent in today's global community. It is not just high net worth individuals who have assets or interests outside of Australia. We are experienced in ensuring our client's international estate planning requirements are attended to. We have expertise in preparing wills both for people who are resident in a foreign country but who have investments in Australia and for Australian residents who have assets abroad. In some limited circumstances, it is our experience that it may be appropriate for clients with assets in multiple jurisdictions to have more than one will, however, this is a complex area and good legal advice is needed to ensure the two wills do not revoke each other and to ensure each will complies with the law in the jurisdiction in which it is intended to operate. For example, we have acted a client who was resident abroad and who had assets both overseas and in Australia. The special circumstances of our client meant that she needed two wills, one to deal specifically with her assets abroad and another to deal with her Australian assets. We worked together with our client's solicitor abroad to ensure our client's overall estate planning needs were met.

 

Statutory Wills in the ACT

In April 2010 the ACT Supreme Court was given statutory power to make an order authorising a will to be made for a person who does not have testamentary capacity. The first ever application was made recently to the ACT Supreme Court in this regard. In this application, the de facto wife of a man who did not have capacity to make a will because of the effects of his brain injury applied to the Court to have a will made and authorised on his behalf making her the sole beneficiary of his estate. The Court made orders to give legal effect to such a will. The Court was satisfied that, if he had capacity to make a will, he would have wanted to have made a will along the lines of the will drafted by the de facto wife's solicitors.

 

Family provision claims

We have acted successfully for people bringing family provisions claims on the basis that they were not adequately provided for in a will. The success of such claims depends upon the eligibility of the claimant to bring a claim in the first place and evidence needs to be considered and obtained in relation to multiple factors, including but not limited to: the character and conduct of the claimant; the duration and nature of the relationship between the claimant and the deceased; as well as the income, property and resources of the claimant and of the deceased. We acted for the spouse of a deceased person where the deceased in her will left multiple gifts to various relatives and friends and bequests to various educational institutions and charities but only a small bequest to her surviving spouse. The title to the family home where the deceased and her spouse had lived for many, many years was in the deceased's name only and was the main asset of the estate. Accordingly, the surviving spouse was effectively going to lose his home and have nowhere to live as this asset needed to be sold in order to pay the various bequests per the will of the deceased. Fortunately, we were able to bring a successful claim on behalf of the surviving spouse to ensure that adequate provision was made for him out of the estate.

We have also acted successfully for executors in defending unjustified family provisions claims that have been made against the estate.

 

Testamentary trusts – asset protection

Our client Mr Smart came to us to have a new will prepared. Mr Smart told us that his son was in business but that the business was not doing so well and that he feared his son may soon face financial difficulty and potentially large liabilities. Mr Smart was rightly concerned that if he died, any inheritance his son would receive on his death would be at risk of falling into the hands of his son's creditors. We prepared a will for Mr Smart setting up a testamentary trust whereby , on the death of Mr Smart, Mr Smart's assets are given to a trustee who will hold those assets for the benefit of the beneficiaries of the trust. The terms of the trust provide the trustee with discretion as to the distribution of the income and capital of the trust to the primary beneficiary (Mr Smart's son) or to persons related to the primary beneficiary. In this way, Mr Smart is still able to benefit his son with an inheritance but also protect the inheritance from potential creditors. Similar asset protection measures through the use of testamentary trusts can also be obtained in the event of the marital or relationship breakdown of an intended beneficiary. We can help you to protect your assets against matrimonial claims made by your children's spouses and/or the second husband or wife of your spouse if he/she remarries.

 

Enduring Power of Attorney

The firm recently acted in relation to a complex matter involving a parent and two children. For a number of years the parent lived in Canberra and maintained primary contact with one of the children, who lived just outside Canberra and held an Enduring Power of Attorney, together with their sibling, on behalf of their mother.

The mother was medically deemed to have a low-level form of dementia, although she was able to maintain conversations generally, recognise her children and express herself.

Without any forewarning, the mother changed her power of attorney in favour of one child, who lived in New South Wales, and excluded our client, the sibling who previously had looked after the mother.

On instructions and following medical advice, an application was made to set aside the new Enduring Power of Attorney on the basis of capacity. The Guardianship Tribunal of New South Wales held a hearing, took into account evidence provided but ultimately decided that when the mother expressed the view that she wanted only one of the children to be her attorney, they were bound by that as she appeared to be lucid at the time.

The lesson to be learnt is that issues of dementia can be a two-way street and where medical opinion provides that the person suffers from dementia, it may not be sufficient in tribunals in relation to fresh documentation. It is to be noted that significant amounts of money were removed from the mother's bank account not long after the later power of attorney was issued.

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