DISPUTING A WILL – WHAT’S THE COST?

The old principle that legal costs arising from disputing a will are usually paid out of the estate (“known as the Probate Costs Rule) is outdated and in need of reform according to the Supreme Court. In a recent case, the deceased had hand written his intentions for his estate in a note book. It was not signed or witnessed as is normally the case for a valid will. Nevertheless, the Court found that the deceased, having studied law and being aware of succession laws, intended that hand written note to form his will and accordingly, the...

read more

IS IT A TRUST WHEN PARENTS RECEIVE MONEY ON BEHALF OF THEIR CHILD?

A complicated situation can occur for estate lawyers when the surviving parents of the deceased have previously received or held money on their child’s behalf. The question arises as to the basis upon which the money is held and a recent case before the District Court of South Australia is an example of the issues that can be raised. The parties to the case were formerly husband and wife. In 2007 their son died intestate (or without a will) and the mother obtained a Grant of Letters of Administration* with respect to his estate. In 1991...

read more

WHAT HAPPENS WHEN AN EXECUTOR OR BENEFICIARY IS NOT LEGALLY COMPETENT?

Often overlooked when we attend to estate planning matters is the appointment of an Attorney by an Enduring Power of Attorney and the appointment of a Guardian by Enduring Power of Guardianship. An Enduring Power of Attorney and an Enduring Power of Guardianship may only be executed at a time when the donor has legal capacity. The appointments endure beyond the donor’s legal capacity and enable the donee to manage the personal and financial affairs of the donor when they are no longer legally competent to manage their own affairs. In the...

read more