Articles

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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Deceased’s Will Failed to Give Effect to Intentions of the Deceased

Posted on Aug 29, 2019 in Articles

Deceased’s Will Failed to Give Effect to Intentions of the Deceased

The deceased left a Will. He gave an interest in his residence to his de facto spouse being the right to reside there for 2 years after his death, then the property was to be sold and his share in the property be given to his son. The rest of the estate was also to be given to his son. The Will contained a direction that the deceased’s superannuation benefit be paid to his son. The deceased had superannuation but failed to nominate a beneficiary to receive his superannuation on his death. The trustee of the super fund in its discretion paid the superannuation benefit to the de facto spouse....

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Beware of Giving Specific Gifts in a Will

Posted on Aug 29, 2019 in Articles

Beware of Giving Specific Gifts in a Will

If you make a gift of an asset in a Will and that asset does not exist at the time of death, the gift fails. When Tom prepared his last Will he owned a home on land. At the time of Tom’s death, he owned a relocatable home but he did not own any real estate. In his Will Tom gave “the real estate owned by me” to a friend. Outcome:  The gift failed because at the time of his death Tom only owned a relocatable home and had a bond for aged care accommodation repayable to his estate for aged care accommodation. Fortunately for the friend (the beneficiary), the Court decided that the Will failed to...

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A Marriage Revokes an Existing Will

Posted on Aug 1, 2019 in Articles

A Marriage Revokes an Existing Will

Don’t learn this the hard way. A marriage after a Will is made revokes that Will. David and Katerina had been in a relationship since 2006 and married in 2015. David made a Will in 2014. When the Will was drafted, David was in the process of divorcing his first wife and by the time he signed the Will, he had divorced her. At that time, he had made no commitment to marry Katerina although they had been in a relationship since 2006. The Will did not contain any words which indicated that it was made in contemplation of his marriage to Katerina. Result David’s Will was revoked by the operation...

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