Wills And Estates

When can the court dispense the requirements for execution, alteration or revocation of a will?

Using the Succession Act 2006 (NSW) as our example, the court may dispense with the formal requirements for the execution, alteration or revocation in s 8 under the following circumstances:

Is there a moral duty requirement in relation to family provision?

When analysing the concept of moral duty in regards to family provision, the initial test which first addressed the concept was set by the Privy Council in Bosch v Perpetual Trustee Co (Ltd):

Can I make a gift for maintenance of my pet?

The position in Australia is that for the most part, a beneficiary must be a person in order for the courts to decree performance. Furthermore, in order for a valid trust to be created, a gift must be made to a charitable body.

Can anyone make a power of attorney?

In order for a power of attorney to be valid, there must be a few general requirements that need to be met for the document to be validly executed:

What are the grounds for challenging a will?

When a will is open to the grant of probate, a person wanting to contest the will may question the validity of the will on some of the following grounds:

Are charitable trusts exempt from income tax?

Provided that the Div 50 of the Income Tax Assessment Act 1997 (Cth) conditions are met, charitable trusts will be exempt from income tax. In addition to exemptions from income tax, charitable trusts may enjoy concessions for payroll tax, fringe benefits tax, land tax, stamp duties and other forms of taxation. 

What is a living will?

The term ‘living will’ is somewhat misleading in that it is not a document related to how a person’s assets are to be dispersed upon their passing, but rather, it is a written document relating to how a person is to be treated in the future if they are incapacitated. The more accurate descriptor for a living will is ‘Advance Care Directives’ and there may be some differences between the States and Territories in relation to such documents.

How is the estate distributed if there is no spouse?

If the deceased had no spouse, the order in which the estate may be distributed can be as follows: children, parents, brothers or sisters, grandparents, aunts or uncles, and cousins.

Can a superannuation benefit be paid into an estate?

There may be an obligation for the superannuation death benefit to be paid into an estate via a trust deed, or a binding death benefit nomination. Furthermore, a trustee is able to exercise their discretion under a trust deed by paying their entitlements into the estate, and if such a course of action is undertaken and is not challenged, the benefit will then form part of the estate.

What are the documents required for letters of administration with the will annexed?

The required documents to be filed for a simple application for letters of administration with the will annexed are as follows:

How does the court set aside a trust used to avoid a creditor?

Under the authority of the Bankruptcy Act (the Act), the courts can set aside a trust which has been created to avoid creditors if it is established that the purpose of the trust was to avoid a creditor, or has that effect.

How can wills be revoked or cancelled?

All jurisdictions have their statutory regimes as to how a will may be revoked. However, some of the general ways in which a will, or part of a will may be revoked can include:

Do all trust instruments have to be evidenced in writing?

One of the main statutory requirements of the validity of a trust instrument beyond the three certainties of intention, subject matter, and object, is that the instrument must be made in writing. Although the requirement may differ depending on whether it is created inter vivos or via a will, the fact still remains that generally speaking, the terms of the trust must be evidenced in writing. However, there are some exceptions to the requirement which this piece will cover.

What are the basic elements of a discretionary trust?

Discretionary trusts usually refers to an express trust that has certain characteristics as noted in the introduction, but the observations in the matter of the Chief Commissioner of Stamp Duties for New South Wales (NSW) v Buckle (1998) CLR 226 at 234 should also be highlighted, with the Justices in the High Court stating that discretionary trusts have “no fixed meaning” and that there is a “strong discretionary element” that are features of discretionary trusts. 

Are trusts able to be assigned?

Trusts which are proprietary in nature, the law for the most part, recognises the rights of a beneficiary to transfer or assign their interest. However, for non-proprietary interests, such as choses in action or mere expectancies in regards to discretionary trusts – can be assigned and is subject to agreement.

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