While blood may be thicker than water, this is not always enough when it comes to preventing families from bickering over the estate of a loved one.  While it doesn’t happen all the time, it does happen and, and it would seem that having a Will in place, does not necessarily make this less likely to occur.

Typically, the larger the estate, the more likely it is for disputes to arise between the parties.  This makes sense when you consider that resolution of these disputes requires litigation, the cost of which is normally attributed to the estate, thus reducing the beneficiaries’ share in the final estate.  Consequently, small estates are rarely worth contesting in the first place.  Beneficiaries’ risk there being nothing left when all is said and done.

With litigation having serious economic implications upon the inherent value of an estate, you may wonder why families may decide upon this as a course of action.  While the reasons can be varied, I’ve narrowed it down to the 4 most common.

1. The beneficiaries cannot agree on what is to happen to the estate property.

While families rarely seem to fight over investments and personal effects (all which are easily converted to a cash value), the cause for many disagreements usually revolves around what to do with the family home.   One or more beneficiary may wish to retain the property (to live in or use as a rental property) and another wishes the property to be sold so that the assets may be liquefied and divided amongst all the beneficiaries.  Clearly this can create a problem, particularly as homes often have memories and emotions attached to them, or, if one of the beneficiaries is still living in the home.

The deceased’s Will may give certain beneficiaries an option to purchase the family home from the estate within a certain time frame.  Clearly, this is a strategy designed to short circuit most disputes.  However, such a clause is not needed; there is no reason why the beneficiaries cannot come to an agreement to buy the other beneficiaries out – provided all parties can agree on a value (or indeed that a valuation needs to be undertaken).  Assuming this is agreed, this can be set out in a Deed and the purchase can occur.

2. The executor appointed under a Will has “apparently” influenced the deceased so that the executor will receive a greater benefit than other beneficiaries.

As our older family members become frail they increasingly rely on trusted members of the family for the purposes of shopping, banking and going to various medical appointments.  It is also common for relatives to assist their older family members when attending a lawyer’s office for the purpose of getting their estate plan in order.

Normally these interactions are entirely proper and above board. However, occasionally these situations may be manipulated as an opportunity where undue influence or duress is brought to bear by the executor or beneficiary, upon the testator, to make their Will a certain way.

Whether such a situation makes the Will invalid or otherwise challengeable depends on the facts of each case.  If the Will is proved invalid, then an earlier Will (if available) prevails; and if there is no earlier Will, then the deceased is said to have died “intestate” (without a will) and therefore there is legislation which decides how their estate is to be divided.

3. There have been unauthorised or unfair transfers of assets during the life of the deceased.

It is common for a testator (the person making the Will) to appoint a trusted child or other relative as their attorney under a Power of Attorney as well as being their Executor.

When the Testator dies, disputes can arise where beneficiaries believe there have been unauthorised or suspicious transfers of assets (for example, monies in bank accounts and even property) during the lifetime of the deceased, which therefore reduces the amount of funds in the estate which is available to be divided upon the Testator’s death.

What often follows is a forensic examination of the transfers to determine which transfers were authorised or unlawful.  We often see the “clawing back” of any unauthorised transfers back into the estate.

4. The use of a Will kit

If a Will is prepared by a law firm, especially a law firm with experience and expertise in estate planning, it can be said that there is a lower probability that the validity of the document will be disputed later on.  The provisions of the Will may still result in an inheritance claim where a beneficiary asserts they have been left with inadequate provision from the will.

However, the same cannot be said for Will Kit Wills (also called ‘DIY Wills’ or ‘homemade Wills’ or ‘informal Wills’). From our experience, home-made Wills consistently have one or more problems present.  Commonly, such Wills possess terms that are ambiguous, or there are concerns as to how the document was executed by the deceased and whether it was properly witnessed.  Furthermore, there may be issues of undue influence, duress (such as those referred to above) or even forgery.

Conclusion

Most estate disputes can be avoided, before the death of the testator, by ensuring that a solicitor skilled in estate planning develops a comprehensive Will and succession plan.

At Welden & Coluccio Lawyers We are the Estate Specialists.  Our expert solicitors know the right questions to ask and while acting in the best interests of our clients, offer independent and considered advice, thereby ensuring You have the best estate plan for Your circumstances.

1)What is a Will?

A Will is a legal document that outlines how you want your estate to be distributed when you die.

Wills are not just for people who own property or have lots of money. We all need a will.  Having one allows you to:

• appoint a person you trust to carry out the instructions in your will (your executor)
• provide for the people you care about
• leave particular items to certain people
• leave any other instructions you may have (for example, about your funeral arrangements)
• express your wishes about who will care for young children should you die prematurely
• make a gift to charity.

When there is no Will doubts and difficulties arise simply because there is no evidence of the deceased person’s wishes.

2) Why is it important that I have a Will?

If you die without a Will you don’t have any say about how your estate is distributed.

The term ‘dying intestate’ occurs when a person dies without a will.  According to the rules of ‘intestacy’ in this situation the estate will be distributed to the deceased’s relatives. This may be very different from what you wanted (or intended to happen).

Dying ‘intestate’ can also cause complications, delays and extra costs for those you leave behind. What’s more, if you die intestate and you don’t have any relatives closer than a first cousin, your estate will go to the government.

3)Who can make a Will?

Anyone over 18 can make a will as long as they have mental capacity.

If there is any doubt over the will makers’ ability to make a Will, an assessment of their legal capacity needs to be made by an appropriate person, such as a doctor, psychologist or psychiatrist.

4)How do I make a Will?

Making a Will can be a simple process although this depends a lot on your personal circumstances.  Most people think they are ‘uncomplicated’ although this is increasingly rare.  Lawyers skilled in estate planning are best situated to offer advice about what kind of estate plan will meet your needs and personal circumstances best.

5)Can I use a DIY Will Kit?

You can and these kits are a ‘cheap’ option.  However, these kinds of Wills (along with those prepared online) carry many risks.  The most common risk (and we see this too often), is that the DIY is incorrectly executed and is consequently deemed invalid.  Essentially, if this happens you die intestate and the rules of intestacy apply.  Your wishes may well be ignored and the whole distribution of your estate can be a long, drawn out and costly experience for your beneficiaries.

Of course, DIY Wills don’t come with the reassurance that seeing an expert offers.  Estate specialists will work in conjunction with tax professionals and they will also advise you on any tax issues you need to take into account when drafting your will.

6)How long will my Will last?

Your Will lasts until you die, unless you change it, make a new one or revoke (cancel) it.

It is important to be aware that a marriage will also revoke a Will (unless the will was made anticipating that particular marriage). On the other flip side, if you have separated or have recently divorced, you need to update your Will.  Failure to do so may well result in your former spouse benefiting from your estate even after you have undertaken a property settlement.

It is important to update your Will if your circumstances change.  The big ones include the birth of children or grandchildren or, in the event of the death of your partner

7)Who should be appointed as my executor?

The executor is the person named in your Will who will be responsible for dealing with your estate after you die.

This person needs to be over 18.  Ensure that they are trustworthy and are prepared to take on this responsibility.  If you wish, a professional such as a solicitor, can be appointed for the job.

8)Where is the Will kept?

Most solicitors will keep the original Will in safe custody for a client for no charge.  We even have special fire safes designed just for this purpose.  This is the safest option because if a Will disappears it is assumed that the testator tore it up for the purposes of revoking it.

If you do decide to take it with you, we recommend it is kept in a safety deposit box in a bank, or in a safe place at home. It is a good idea to keep a signed ‘copy’ with your personal papers, along with a note explaining where the original Will is.   Furthermore, it is a good idea to advise your executor where the original Will is.

9)Can I change my Will?

Your Will can be changed at any time as long as you have mental capacity. It is important to note that you cannot change your will by crossing out something in your Will and initialling it, or writing something different in its place.  To do so may cause your entire Will to be invalidated; or, at the very least, may mean that the change is invalidated.

10)Can my Will be challenged?

While all Wills are at risk of being challenged, most commonly a Will is challenged on the grounds that it is not valid. DIY Wills, because of issues related to their execution, are most vulnerable to this.

Other reasons may include:

• It was not the deceased last Will (there is a later dated will in existence)
• It was not properly signed and witnessed
• The Will maker did not have mental capacity when it was made
• The Will was changed or altered after it was originally signed,

or,

• The will maker was forced or influenced into making the Will.

Certain categories of people (mostly family) can also contest a Will if they believe they weren’t properly provided for in the Will. This is called a ‘family provision claim.

Having your will made by a solicitor will lessen the chance of a successful claim occurring.

The loss of a loved one is a profound and overwhelming experience. Not only do you need to deal with your personal grief and the roller-coaster of emotions, but you may also be responsible for finalising the financial affairs of the deceased.

The most common question we hear from our clients when they have lost their loved one is, “What do I need to do now?”

Such a question, tinged with sadness, is frequently accompanied by a degree of confusion and a feeling of ‘not knowing where to start’.

The checklist below is only intended to help you to understand what you may need to consider doing when you have lost a love one.

The first stage is to consider and understand the financial affairs of the deceased. Locating the following documents will provide you with an understanding of your loved ones affairs:

• The Last Will;
• Bank books,
• cheque accounts;
• Loan documents;
• Visa/Master card statements;
• Life insurance policies;
• Superannuation policies;
• Pension benefits;
• Refundable bond from a nursing home;
• Certificate of Titles if the deceased owned any property;
• Share documentation;
• Unpaid bills;
• Tax returns;

If the person was running their own business

• Trust documents;
• Company documents;
• Tax returns;

Although locating the above documentation can take some time, they will be critical when the time comes for administration and distribution of the Estate. Depending on the size of the Estate, a Grant of Probate may need to be obtained before any distribution of the deceased’s estate.

Should any of the deceased estate be distributed by you without a grant of Probate, you may be personally liable for any loss and therefore, it is important to know your obligations before you distribute any of the estate.

Welden& Coluccio Lawyers, the Estate Specialists, are happy to alleviate some of the burden during this difficult time and can assist you in determining if a Grant of Probate is required while preparing any applications for Court.

Maddalena Romano, an experienced solicitor skilled in all facets of property conveyancing, discusses the process for selling a home and advocates for the role of a knowledgeable solicitor in this.

There are different reasons homes are sold. For example, you might be up-grading to a bigger home, down-sizing to a smaller one, or finalising a property settlement. Regardless of your reasons, selling a property it can be a difficult and emotional time. Selling a house is the process of exchanging ownership in property; it involves a broad range of steps such as disclosures, contracts, cooling-off periods, title searches and property inspections before the home is sold.

Selling your home normally consists of three steps

• Pre-contract – preparation of form 1 and searches
• Pre-completion – preparation of the contract of sale
• Post-completion – conveyancing

The solicitor will deal with the full range of potential issues relating to a property including:

• Investigate any charges and encumbrances on the property
• Identify precisely what is included and excluded in the sale? Which items are considered fittings and which are considered fixtures?
• Negotiate the possibility of a final inspection before settlement
• Determine whether or not GST applies to the purchase price.
• Advise on Ownership structure such as joint tenancy or tenants in common

Should I use a solicitor?

Using a solicitor will give you peace of mind thus allowing your agent do what they do best; getting you the best price for your home:
• Cost: for a solicitor to undertake the Form 1, conveyancing will be a fixed fee
• Protection: Solicitors will be able to assist you if the sale goes wrong and protect your interest as you are our client.
• Legislation: Property laws are constantly changing. We have an in depth knowledge of the property laws.
• Qualifications and experience: The contract that will be used is the Law Society contract. We recommend that the Law Society contract is used as the contracts are updates yearly to ensure it meets the highest quality and standards of legal principles adopted by the Law Society. The contact is only available to authorised members of the profession.
• Specialist advice: There is frequently a lot of variation across property sales. Solicitors can help you with the particular needs you have in the transaction. Do you need advice on Capital Gains Tax? Do you need to change your Will? Will the sale have family law implications?

Hidden Costs of Using a Conveyancers

You might think that you are saving costs when you use a conveyancer to undertake your property settlement. When you speak to a conveyancer they will advise you that their cost will be $650 + GST ($715), but they don’t explain to you the hidden costs which you don’t know until you receive your settlement statement after settlement.

Conveyancers will charge you extra for the following:

• For disbursement for check and history search of CT, photocopying, postage, bank cheques, insurance, phone, fax and printing which can equate to an additional cost of between $100 and $150 ;
• VOI fee to comply with Registrar General’s Verification of Identity Policy between $50 and $80 per person;
• Banking fees to attend at Banks to deposit proceeds of sale to nominated bank accounts after settlement an additional $44.

Therefore a simple conveyance of your home goes from $715 to $1000, this is without the benefit of receiving any legal advice.

In Summary…

Solicitors have a comprehensive and nuanced understanding of the Law. As a homebuyer, you are potentially engaged in a complex sale with a high number of issues and risks. Using a solicitor affords you the experience and knowledge to tackle any hurdles decisively and with confidence. Welden & Coluccio Lawyers are experienced in all facets of this process and are able to assist you enabling you to get on with the joys of home ownership rather than the stresses.

Maddalena Romano has more than a decade experience working in all aspects of Criminal Law within South Australia.  She writes frankly about your rights as a citizen should you be approached or questioned by a police officer in SA.

We have all been taught to respect Police officers as they are people of authority but we have been seeing increasing incidents where police have used excessive force when dealing with people.

It can be extremely intimidating to deal with police, particularly if you have been questioned or detained on suspicion of a crime.

It is important to remember you have many rights that are designed to protect you when you are dealing with Police. That is why it is important to seek the assistance of legal representation when dealing with police, this is something which police often forget.

Approached or Questioned By Police: By law, you are not under any obligation to stop and answer questions posed by a Police Officer, except to provide your name, date of birth and address.

Further, unless you are suspected of a crime, and the police feel they have enough evidence to charge you for it, then the Police do not have general power to arrest you purely for questioning.

What is police misconduct?  Police misconduct encompasses illegal or unethical actions or the violation of individuals’ rights by police officers in the conduct of their duties. Examples of police misconduct include police brutality, dishonesty, fraud, coercion, and abuse of authority. Any of these actions can increase the likelihood of a wrongful conviction.

Like prosecutors, police officers job and role is to make our society safe. Sometimes their behaviour leads them to cross the line and use the power of their badges to make a case that otherwise would not be there to be prosecuted.
Other officers are often reluctant to report police misconduct because of the loyalty they feel for their fellow officers. The increase use of cell phone cameras have allowed citizens to record and report police misconduct, which can only be a good thing. Like many situations, it is the few that ruin it for the many.

If you are questioned by police, make sure that you provide your details as required, but always refrain from answering any questions until you have had the benefit of obtaining legal advice.

Welden & Coluccio Lawyers are thrilled to announce that they are finalists in the Australian Small Business Champions Awards.  The prestigious event, held annually in Sydney, is described as the ‘Oscars event for small businesses’.

Greg Welden and his wife Tanya will represent the firm tomorrow night, 1^st April 2017, at a gala presentation dinner held at the Westin in Sydney.  “While we have no expectations about securing the coveted prize in the category of legal services, it’s a major buzz to have our hard work recognised by the judging panel.”

The team at Welden & Coluccio Lawyers join with our clients and colleagues to wish Greg all the best for tomorrow night.

Greg Welden was in Melbourne last week delivering a paper via ‘Live-video-Webinar’ in conjunction with the Television Education Network.  The topic of the paper was ‘Superannuation and Estate Planning’.  This event will be followed up next week with the same paper being delivered in person at the Eleventh Annual Estate Planning Conference held at the Langham Hotel in Melbourne. 

While participation in such an event is a massive honour that recognises Greg Welden’s years of experience and deep wealth of knowledge as an estate specialist; preparation for such events is an intensive process.  However, as Greg explains, “Opportunities such as this enable me to synthesise and deepen all that I have learned about estate law over the past 18 years.  Of course, presenting at National conferences also assists to raise the profile of my chosen area of law, while contributing significantly to the broader legal community.”

I’m sure that all our professional colleagues, clients, and supporters will join with the team at Welden & Coluccio Lawyers, to congratulate Greg on his achievement and wish him all the very best for a successful presentation next Thursday.

When a spouse dies during a marriage or committed relationship, the surviving spouse will ordinarily assume the sole parenting role. While occurring today with less frequency, what happens if the greatest tragedy should occur and both parents should die before their children reach independence?

In case of the above event arising, it is critical that parents take steps to appoint an appropriate guardian(s) for their children. The appointed Guardian will have the legal authority and power to make significant decisions regarding your minor children in the event of the death of both parents.

Clearly, the guardian (s) of your children, should be persons of a responsible nature, and depending on the age of your children, it is normal (and advisable) to appoint persons who are already close to them.
Other factors that help clients when making this decision, is choosing persons who share similar religious beliefs, views and educational outcomes. Other factors which may have some bearing on this decision, is if the guardians have children of their own and the ages of their children.

Alternative and substitute appointments of guardians are also important because, like most testamentary appointments, there is a possibility of the chosen guardian predeceasing or becoming incapable or unable to take the appointment. This situation can arise when guardianship is appointed to a grandparent who may be elderly.
It is important to have a Will which appoints guardians of your minor children. To discuss this important inclusion, and for assistance in drafting your overall Estate Plan, speak to the experts at Welden & Coluccio Lawyers.