Posts by smallwoods

Parents and Children – Gift OR Loan?

Posted on Mar 6, 2023 in Articles

Parents and Children – Gift OR Loan?

Facts The mother paid $165,000 to her daughter and son-in-law when they purchased a home in the names of the daughter and son-in-law. The intention was for the mother to also live in the home. Over time the relationship soured and the mother was asked to leave. The daughter and son-in-law claimed that the contribution by the mother was a gift (at law called an “advancement”). Outcome The court concluded that the mother had an indefinite right to live in the property and was entitled to the return of her contribution and granted her security over the home. The court rejected the argument that...

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Wills, a tangled mess

Posted on Mar 2, 2023 in Articles

Wills, a tangled mess

Facts John and Mary drafted Wills which mirrored each other.  Each Will stated that the survivor would leave their estate to their three adult children equally. John passed away in 2014 and in 2015 Mary changed her Will leaving the major asset (the home) to one child and the residue to 6 grandchildren and nothing to her other two children. Several years later Mary reconsidered and drafted a new Will reinstating the objectives she and John had previously agreed to. Mary failed to sign the new Will. One of the children filed an application for part of Mary’s estate on the basis that Mary...

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Yet Another Superannuation Contest

Posted on May 8, 2020 in Articles

Yet Another Superannuation Contest

In previous articles I said it paid to consider your superannuation when reviewing Wills and Estate Planning generally. The following scenario reinforces that advice. Facts Fred died without leaving a Will. Those entitled to his estate included his wife of 6 years, Fred’s mother and his brother. Fred’s wealth consisted of his death benefit superannuation of $541,000. Fred’s wife was administrator of his estate. Problem Fred had not made a binding Beneficiary Nomination to the Trustee of his Super Fund but before marrying his wife had made a non-binding Nomination in favour of his brother....

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Another Superannuation Contest

Posted on Apr 30, 2020 in Articles

Another Superannuation Contest

It pays to consider your superannuation when reviewing your wills and estate planning. Scenario Helen was the sole member of a self-managed superannuation fund (SMSF).  She and her daughter were the trustees of the fund. After Helen died, the daughter paid the whole of Helen’s superannuation benefits to herself. Helen’s husband of 32 years challenged this. The court said it was not its role to consider the fairness or reasonableness of the exercise of the trustee.  However, the result was “grotesquely unreasonable”, which was evidence the daughter’s exercise of her discretion was not...

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The hidden cost of homemade Wills

Posted on Apr 28, 2020 in Articles

The hidden cost of homemade Wills

Daryl left an estate worth millions to his children. 1. The Will contained testamentary trusts BUT failed to nominate beneficiaries of the trust. 2. The Will also provided cash gifts “up to a maximum of $”. 3. The Will did not contain an appropriate clause to deal with capital gains tax. 4. Numerous other inconsistencies existed. The Court was asked to rectify the Will. Outcome Evidence was provided that the deceased did not wish any of his children to be worse off as a consequence of capital gains tax. After seeking expert advice the Court rectified the Will to ensure that the trusts...

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