Oath or affirmation?

Some parts of the legal process can seem quite old fashioned in our modern world.

One part that surprises some is that there are still many documents that have to be signed in person — you can’t just say they are OK or sign them online. Wills, affidavits, court applications and our cost agreements are some of the documents that must be signed in person.

Even more mind-blowing to lots of clients is that there are some documents, like court affidavit where you have to swear an oath or make an affirmation that the contents are true and correct.

An affidavit may be made under Victorian law for Victorian court proceedings or under Commonwealth law for Commonwealth proceedings, like Family Law proceedings.

The swearing or oath must be done in the presence of an authorised witness, who signs that they have witnessed the oath or affirmation.

Oaths are frequently made while holding the bible, the New Testament or the Old Testament or another relevant religious text, although it is not necessary that a religious text be used in taking an oath. In fact, if the oath was properly made and taken, the fact that the person to whom the oath was administered had no religious beliefs at that time does not affect the validity of the oath.

To swear an affidavit by oath the person making the affidavit (the deponent) has to say “I swear by Almighty God (or the name of a god recognised by his or her religion) that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular and these are the exhibits referred to therein”. It can be quite a mouthful, it's also a rite of passage for a new lawyer to learn this off by heart.

“I swear by Almighty God (or the name of a god recognised by his or her religion) that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular and these are the exhibits referred to therein”

When you are swearing a document, you have the choice to take an oath or to make an affirmation. The wording of the affirmation is “I solemnly and sincerely declare and affirm that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular and these are the exhibits referred to therein”.

“I solemnly and sincerely declare and affirm that this is my name and handwriting and that the contents of this, my affidavit, are true and correct in every particular and these are the exhibits referred to therein”

Different courts have different requirements as to whether you have to sign the affidavit on each page, the family courts do, others don’t.

For the document to be effectively sworn the witness must be authorised to take affdiavits (like a lawyer) and the jurat (certification of swearing) must be completed by the witness marking the date it was sworn and recording by their stamp or writing their name, address and qualifications to take an affidavit. Each exhibit must be marked and signed by the witness as well.

Affidavits are important statements of truth in court proceedings, so such specific steps are warranted. It shall be interesting to see if a process that relies more on technology is used in the future &msash; these days having to click a box that you understand you are telling the truth is probably taken more seriously by most people.

10 things to know about divorce

10 things to know about divorce

When a married couple separate, the whole event is often described as a divorce.

However, divorce has a very specific meaning under Australian law. It is not a property settlement, it is not a separation, it is not sorting out the arrangements for children. A divorce is a court order ending a marriage. It is like the official tearing up of your marriage certificate. There are a lot of myths and misunderstandings around divorce, so here’s 10 key things to know about divorce.

1. For a divorce order to be made, your marriage must be broken down irretrievably.

That is, you will not resume married life. You’ve made up your mind and it is final.

2. You do not need to provide the court for a reason for your divorce.

The Family Law Act 1975 established the principle of no-fault divorce in Australia. Therefore, the court does not need to hear or judge the reason why the marriage has irretrievably broken down, that can stay between the two of you.

3. You must have been living ‘separate and apart’ for at least 12 months.

This is easiest to prove when one of you has moved out of the former matrimonial home and you have been separated ever since. It is common for people to been separated but have lived separately under the one roof for all or some of the 12 months of separation. To prove you were separated during this time, you must show there was a change in the way you related to each other after separation in comparison to beforehand. This could include:

• Sleeping in separate bedrooms;
• No sexual relations or intimacy;
• Not helping each other out with household chores such as cooking each other dinner or doing the other persons laundry;
• Having separate finances ;
• Not attending social functions or events together;
• Not socialising together.

Periods of Reconciliation

It is also common for people to attempt reconciliation after they have separated.

If the reconciliation lasts for a period of less than 3 months, you may add the periods before and after the reconciliation together to obtain the necessary 12 months.

However if the reconciliation lasts for a period longer than 3 months, the clock starts again for the 12 month period at the end of the reconciliation period.

4. You must demonstrate to the court that there have been reasonable arrangements made for the care and welfare of any children under the age of 18.

This involves explaining the arrangements made for the child in line with their:

• Living needs
• Schooling needs
• Health needs

5. If you are applying for a divorce within two years of when you got married, you will need to prove that you have attended counselling.

Visit the Family Relationship Centre website for a list of court certified counsellors that can give you a certificate demonstrating to the court you and your spouse have attended counselling.

6. You must have a jurisdictional connection to Australia in order to apply for a divorce here.

Either you or your to be ex-spouse must either:

• Regard Australia as their home and intend to live here indefinitely after the divorce; or
• Be an Australian citizen by birth, descent or by grant of Australian citizenship; or
• Ordinarily live in Australia and have done so for 12 months immediately before filing the divorce application.

As long as one of the above criteria is satisfied the Court will be able to hear your Divorce Application, regardless of where you were married or where you previously lived.

7. The Court will only focus on your divorce application.

Many people come to us thinking a divorce application also encompasses a property settlement, spousal maintenance, child support and interim orders. Although this may be the case on US TV shows, it doesn’t work that way in Australia. The court will only consider whether or not it should grant a divorce. The court does not have to have any regard for if both parties of the marriage want to get a divorce or if only one party does.

Property and children’s matters are separate court applications.

8. A divorce is not obtained overnight.

When the application is filed the Court will list it in court for a hearing. The date of the hearing will most likely be a couple of months away.

Provided that the court is satisfied that you have met all of the requirements a Divorce Order will be made but it does not take effect until one month and one day after the hearing.

9. Until your divorce is final, neither of you are able to get married to anyone else.

If you do, you will be committing bigamy which is a criminal offence in Australia. Perhaps just put a few more months into the wedding planning and wait for after the divorce has taken effect.

10. The Will you made during your marriage will now be invalid.

If you have a Will at the time the divorce is obtained certain clauses will be revoked because of the divorce. These clauses include any provision you have made for your former spouse, any grant of power you have given them or if you appointed them as an executor of your will.

Any clauses that appoint your former spouse as a trustee of a trust in which the beneficiaries of the trust include children of your former spouse will not be revoked. This means your former spouse will have control over money or property you have your children.

If you separate from your spouse and do not have a Will, your former spouse may still inherit if you die before a Divorce Order is issued by the Court. If you have never made a Will, only a Divorce Order will ensure that your former spouse will not be able to inherit your assets.

Rather than leave these matters to chance it is best to be on the safe side and make a new Will after your divorce to ensure your intentions concerning your former spouse are crystal clear.

Life Interests under wills

A life interest in a will is a type of trust created by the will which allows for a beneficiary (known as the "life tenant") to receive the benefit of an asset (i.e. a property) for the remainder of their life.

In the case of a property, the life tenant is not transferred the ownership of the property, but rather the property is held by the Executors for the life tenant to occupy, rent free, for the rest of their life. The life tenant is usually responsible for maintaining the property and paying all rates and outgoings; however they are also usually entitled to income generated from the asset.

A major advantage of a life interest is that you can elect someone to receive the benefit of the asset during their lifetime, and then upon their death, nominate who should receive the asset outright.

In blended family situations where you have a second spouse or partner, and children from a different relationship for example, a life interest may be beneficial as you can elect for your spouse/partner to receive a life interest in your property, and then upon their death, the property is to go to your children.

A life interest is governed under the "Settled Land Act", which importantly provides that if a life interest is created under a Will, there must be two trustees (Executors) appointed to govern the trust.

It is important that if you wish to include a life interest in your will you work with an experienced wills lawyer to ensure that the life interest is drafted appropriately. One important factor to consider is what happens if the beneficiary of the life interest needs to move to a nursing home or retirement village. An approach to this is to have the provision structured to allow the life tenant to sell the property if necessary say to move into a nursing home or retirement village. Upon the life tenant's death, the refund from the nursing home or retirement village is then dealt with in accordance with the Will.

Depending on your circumstances, a life interest could be a very helpful trust to include in your will. A Will & Powers of Attorney lawyer at OFRM can look at your circumstances to advise whether this is advantageous to your particular situation, and also ensure you comply with the relevant legal requirements. Call us on 03 5445 1000.

It’s my money. I’m going to give it charity

Leaving a gift to a favourite or meaningful charity is one of the most powerful and rewarding things a person can do when preparing their will. However, if you plan to make a significant gift, it is vital to receive accurate legal advice when making your will to ensure that what you think is going to be the effect of the gift is what happens and that the gift isn’t challenged.

If there are people in your life who you have an obligation to support, they may be able to challenge such a gift made in your will. If it could be considered that you have such an obligation, then your will needs to be carefully constructed so that any Court understands why you have made the decision to distribute your estate in the manner you have, that you knew what you were doing and that were good reasons for your decision.

If your will is challenged, the Court has powers under Part IV of the Administration and Probate Act to provide provision to eligible persons you owed a duty of proper maintenance or support.

Persons that may be eligible to make a claim against your estate include a spouse or partner, a child or a step-child.

Simply because someone can make a claim against your Estate does not mean that they will be successful, however as these issues will be dealt with when you are no longer here it is important that you have provided significant information which gives context to your decision to assist the Court in determining if a claim should fail.

This is yet another example of why it is so vital to get quality legal advice when making your will. Call our Will & Powers of Attorney team on 03 5445 1000 and they will be able to help.

Flying overseas? Better make a will before you go

In my many years of preparing wills, the most common reason for making a will (or updating a will) is because there is an overseas flight imminent.

Despite air travel being one of the safest forms of transport, people see that hopping on a plane as a real motivator to get their will in order.

Any reason that makes a person pay attention to their will is helpful.

If a couple should both die at the same time, whether it be in a plane accident, a car accident or house fire the distribution of the estate where there is no will can be quite surprising.

For most couples, their main asset will be a jointly owned house. Joint ownership means that, upon the death of one owner, the other co-owner automatically becomes the sole owner of the property. If both owners die at the same time then you need to look at the pathologist’s report to decide who lived the longest, even if only for a short period of time. Then the house goes to the next of kin of the person who died last.

Assuming that there are no children, then the beneficiaries are likely to be the parents of the person who died last. The parents of the person who died first would receive no share of the house.

If the pathologist cannot decide who died first, then the oldest person is legally presumed to have died first, and the relatives of the youngest person would inherit the house.

So if a couple dies without a will, it really is a lottery as to where the assets will flow.

The easy solution is to make a will which provides that upon the death of both persons, the estate is divided equally between the two surviving families, and that way it does not matter who dies first as you end up with the same outcome. Of course, you may not want your relatives to inherit the house at all. You may have other choices that are more important to you.

Despite having planned the overseas holiday many months in advance, I am still surprised by the number of people who contact me only a week prior to their trip asking for a will to be made or updated. You should give yourself plenty of time to complete the task and do not wait to contact the lawyer on the same day that you are packing your suitcase!

To make or update your will contact our Will & Powers of Attorney team on 03 5445 1000.

Can you make a will if you do not have testamentary capacity?

It is a fundamental principal that a person must have testamentary capacity to make a valid Will. Basically this means:

• You must understand the nature and effect of making a Will.
• You must be able to recall the nature and extent of your assets.
• You should be able to weigh up all of the factors that the average person would normally bring to mind when considering a Will.
• You must not be suffering from a medical condition which prevents you from considering the above factors.

If there is some doubt about a person’s capacity or that could be an issue it is an excellent idea to obtain a medical report at the time of making the Will. In certain circumstances, the opinion of a specialist medical practitioner such as a neuropsychologist might be appropriate.

Should a person lack the ability to make a valid Will then the Supreme Court has the power to make a Will for that person if it can be satisfied that the proposed Will accurately reflects the likely intentions of the person. Applications to the Supreme Court for approval of a Statutory Will are not common. Statutory Wills can be made for a person who has never had the capacity to make a Will or they can be made for a person who had capacity but through illness or injury, has subsequently lost the ability to make a Will.

The Court will need to consider the wishes of any person who might reasonably be affected of the making of a Court approved Will.

The difficulties around testamentary capacity are a vital reason why you should make a Will when you are fit and healthy.

The possibility of a Supreme Court will is a good reason why those with a loved one who doesn’t have testamentary capacity should seek specific advice about whether such an application is appropriate.

Russell Robertson is Bendigo’s only Accredited Wills and Estate Specialist. If you wish to chat about your will or possible issues with testamentary capacity, please phone Russell on 03 5445 1020 or email r.robertson@ofrm.com.au

How does marriage affect a will?

https://ofrm.com.au/blog/2016/10/10/why-make-a-will-on-separation

When you are excitedly preparing for your wedding, updating your will is often the last thing on your mind. However it is important to understand how putting the ring on the finger will impact your existing will. The key impacts are:

• A Will is normally revoked by you getting married after the will is signed
• There is an exception that if a gift in the Will is in favour of someone who you subsequently marry, then that gift will survive but the rest of the Will is still revoked.
• However your will won’t be revoked if in your will has in it that it was made “in contemplation of the marriage”
• If you are in a domestic relationship (commonly known as a defacto relationship, living together but not married) and there is a chance you will subsequently marry, then you can save the will being revoked upon your marriage by expressly stating in the Will that any subsequent marriage will not revoke the Will

Yes, this is all a bit technical and quite confusing. Best way to avoid this is to make sure you make a new will if you start to live with someone and review your will if you are getting married or have married.

Divorce is different. A divorce does not revoke a Will. However, any gift to a divorced spouse is revoked. The appointment of your spouse as executor is revoked if divorce subsequently occurs unless the provisions in the Will benefit your children.

Don’t wait until you are divorced to think about your Will though. Have a read of this earlier blog I wrote about why you should make a new will when you separate.

Russell Robertson is Bendigo’s only Accredited Wills and Estate Specialist. If you wish to chat about your will or how to make sure you can ensure your funeral arrangements, please phone Russell on 03 5445 1020 or email r.robertson@ofrm.com.au

I need a small amendment to my Will. Should I make a Codicil or do a new Will?

Once you have made a Will, it is probable that the next time it needs to be updated only a minor amendment is required. One simple option is to make a formal codicil to the Will. This operates to delete and/or insert provisions in the original Will.

“Codicil” is a bit of a funny sounding old fashioned legal word. It is generally defined as “an addition or supplement that explains, modifies or revokes a will or part of one”. The idea of codicils probably hark back to the days before computers when redrafting a previously prepared will meant completely rewriting (in fountain pen!) or retyping the whole will. To save having to do the whole thing again a codicil could be made to alter only the relevant part of a Will.

With modern technology it is now possible to easily create a new will based on your old will and alter the relevant parts.

It is preferable to update the Will rather than make a codicil for reasons including.

• The formal requirements are still necessary including signing the codicil in the presence of two witnesses.
• Most importantly, your beneficiaries do not get the opportunity to see the amendment. All that is left is your final Will. No one will know if there has been a previous document which increased or decreased the provisions for any of the beneficiaries. This can prevent a beneficiary’s feelings from being hurt.
• Drafting a codicil can be messy. Although the change might appear to be simple, it does require the reader to look at two separate documents to understand your wishes. While it is possible to have more than one codicil, it just makes the task for the reader more challenging. Keeping everything together in the one document is more logical.
• There are no savings in the costs of preparing a codicil as compared to updating an existing Will. We always keep electronic copies of Wills and it is straightforward to make amendments. It can be more time-consuming to prepare a codicil then update an existing Will.

Everyone should look at their existing Will every 2 to 3 years and do their own analysis as to whether any changes are required. It is surprising how easy it is to forget the provisions contained in your Will even though the document is only two years old.

Getting married? Add “update Will” to your checklist

Amongst the busyness of planning a wedding and getting married, updating your Will is probably not on your "to do" checklist.

However many people may not realise that marriage actually revokes a Will.

If you die without updating your Will after marrying, the rules of intestacy apply. As discussed in greater detail ("The perils of leaving it to chance"), if you do not have any children, then 100% of your assets will go to your spouse, which is what you may want anyway, however if you have children, they may be entitled to some of the assets. This is of course problematic if the only asset is the family home, which you intended would be transferred to your spouse alone.

Additionally, if you have a blended family, then the outcome of the intestacy may not be at all in accordance with your wishes.

How can I avoid this situation happening?

Obviously, the best way to ensure that your wishes are carried out is to update your Will as soon as you marry. However if you and your partner are making a new Will and marriage is pending you can make your Will "in contemplation of marriage" to your future spouse. In this case, your Will remains valid after the marriage, giving you peace of mind while you are on your honeymoon!

What about separation and divorce?

It is also important to keep in mind the effect of other relationship changes on your Will. Separation from a spouse does not invalidate your Will or any of the clauses in it. Therefore it is essential to update your Will as soon as possible after separating, to avoid a situation when a sudden death leaves all of your assets going to your ex-partner.

Similarly, although divorce does not invalidate your whole Will, it does invalidate the clauses relating to or benefiting your ex-spouse.

To avoid being caught out in a messy situation, remember to add "update Will" to your checklist if you’re getting married, separating or when your divorce is made. Speak to one of our Will & Powers of Attorney team at OFRM who will happily guide you through the process and ensure your Will is valid and up to date. Call 03 5445 1000.

When is there a reading of the Will?

No doubt you have all seen the dramatic movie scene when the family are seated before the lawyer who reads out the contents of the Will and then the camera pans to the excited/disappointed/angry faces of the family in turn.

That scene pretty much only happens in Hollywood. It is rare in Australia for there to be a "reading of the will" — these days the contents of a will are much more easily and appropriately distributed by people being provided with a copy of the will. Photocopiers and the internet have changed the way!

Once a willmaker dies, the Will is under the control of the executor. They determine if copies are to be sent to anyone. However section 50 of the Wills Act states that a number of people are entitled to be given a copy of the Will if a request is made:

• any person named or referred to in the Will, whether as a beneficiary or not;
• any person named or referred to in any earlier Will as a beneficiary;
• any spouse of the deceased at the date of death;
• any domestic partner of the deceased
• any parent, guardian or children of the deceased;
• any person who would be entitled to a share of the estate if the deceased person had died without making a Will;
• any parent or guardian of a child referred to in the Will or who would be entitled to a share of the estate if the deceased had died without making a Will; or
• any creditor or other person is a claim at law or in equity against the estate of the deceased and who produces evidence of that claim.

It is sensible for beneficiaries to be given a copy of the will, even prior to them asking. Doing this often avoids the angst caused by uncertainty and speculation. There is a natural curiosity when a person dies as to what provision they have made in their Will. Keeping secrets might change curiosity into frustration and anger.

Once the probate application has been filed, any member of the public can obtain a copy of the Will upon providing payment of the search fee.

Given that so many people might possibly read the Will after death has occurred, is a reminder that great care should be taken when making any comments that are justification of decisions made. You should consider explanations where it is appropriate. It is best to avoid words that are merely intended to hurt or offend.

It is a good idea for you to look at your current will in light of the matters discussed above. If you think that your will needs more explanation given the potential audience you should contact one of our Will & Powers of Attorney team on 03 5445 1000 to discuss further.

Where do I keep my will and who should I tell?

Your Will is a very important document and like the title to your house should be kept in a place that is secure, unlikely to be damaged by liquids, drawn on or mistaken for the place to write down the shopping list.

The safest place to keep your original Will is at your lawyer’s office. Our office has a secure and fireproof room where wills are kept and kept in a manner that means they are acceptable to the Supreme Court.

You should also keep a copy of your Will with your other important documents.

You should tell your Executors the location of the original will and advise them that you have appointed them as your executor. You may also want to tell them where you are keeping a copy of you Will and other important details they may need.

In addition to your Executors some people like to tell their children or other significant beneficiaries the location of their Will and who they have appointed as executors, however there is no obligation on you to do this.

It is very rare that anyone needs to know the content of your Will in advance. If you choose to disclose the content of the Will, you can do this but there is no obligation on you to do so. All your Executor needs to know is the location of the Will and that you have chosen them as your Executor.

If you need any further information regarding these important steps please contact one of our Will & Powers of Attorney team to discuss by phoning 5445 1000. For clients who have their will done with us, storage in our office is a free service.

Property ownership - what happens when you die?

Hopefully you read our recent blog by our property lawyer Meg Gilbert regarding the Ways to share property ownership.

How you own property is important when considering estate planning as what you think you own and can give away, may not be property you can gift through your Will.

When you own property as a joint proprietor, you and whoever you own the property with, own it together. As Meg states; "people who purchase property as joint tenants own the whole of the property together. If one owner dies then the deceased’s share of the property automatically passes to the surviving owner. The most significant effect of joint ownership is therefore that the property doesn’t from part of your estate on your death, rather it automatically passes to the other owner."

As property owned this way does not form part of your Estate on your death, careful consideration should be given as to how you own property and is particularly important in circumstances where you are part of a long term second relationship or a blended family.

If property is owned as tenants-in-common parties own a defined portion of property and are able to do whatever they wish with their portion. This means that your share of the property can be given to the person who owns the other share or can be given to someone completely different. This is the same if you own property in your individual capacity.

Finally, if you own property as a trustee, this property is not yours to gift in your Will and must be dealt with in accordance with the provisions of your Trust.

If you think that your will or the way you own your property doesn’t suit your situation, please contact me or one of the other lawyers in our Will & Powers of Attorney team on 03 5445 1000 to discuss further.

Who is your domestic partner - young adults and superannuation

Last time I wrote about the connection between superannuation and wills, I said that if you do not have a binding death benefit nomination for your superannuation it will go to your spouse which may be a 'domestic partner'. Today I’ll explain further what that means.

Who is my domestic partner?

If you are living with a person (whether of the opposite or same sex) on a permanent domestic basis in the one shared residence then you are probably in a domestic relationship. Marriages are easy to identify - a religious or civil ceremony has occurred. Domestic relationships are not so easy to identify and are certainly difficult to define as having started on a particular date. The commencement of a domestic relationship is more like osmosis. It happens organically over a period of time. A couple might be able to state that three months ago they were not in a domestic relationship, and although they acknowledge that they are in a domestic relationship now, they cannot identify one particular date over the last three months which swings the opinion from two solitary lives to a domestic relationship. For the purposes of superannuation there is no minimum time limit that the domestic relationship must exist in order to qualify for the benefit.

A couple of examples

Jason is 25 years old, in full-time employment, still lives at home, but has a female friend Kylie. They have been in a close relationship for three years. Jason does not have a Will. He has $10,000 accumulated in his superannuation fund plus an insurance death benefit of $250,000. No binding nominations been made. Should Jason die at this point, the superannuation fund is likely to pay the benefit to his parents because he was in an interdependent relationship with them, or they might pay to his estate. Without a will Jason’s parents are his next of kin and will be entitled to his entire estate.

Six months later Jason has moved out of home and is sharing a house with Kylie. They have been in the house for nearly 6 months when Jason dies suddenly. The superannuation will be paid to Kylie as his domestic partner. His estate, because he did not have a Will, will again go to his parents as the next of kin. Kylie only qualifies as the next of kin for his estate if they have been together for two years as a couple.

Let’s suppose Kylie and Jason separate after a few months of sharing the house and Kylie moves out. Nicole then moves into the spare bedroom and shares the rent. Six months later, Jason is still unattached, but he and Nicole have taken advantage of the moment as consenting adults from time to time. Is it friends with benefits? Is it a more modern version of the domestic relationship? Or is it none of these? This time Jason has completed a binding death nomination naming his estate as the beneficiary so the nature of the relationship does not matter.

It is so important to make a binding death benefit nomination, particularly as a young adult. Of course, you should make a Will as well. For advice on this and other will related matters contact the Will & Powers of Attorney team on 03 5445 1000.

What is probate and who grants it?

Obtaining Probate is an essential element in administering many deceased estates. Probate is the process of proving the last Will of the deceased with the Supreme Court to establish the following:

• That the Will is indeed the last Will
• Who the Executors are
• That the will is valid

With the assistance of a lawyer, the Executor or Executors provide information to the Supreme Court in prescribed forms to prove the above information. If the Registrar of Probates is satisfied about those elements, Probate is granted. The practical step of Probate being granted is that there is an official document that is sealed by the Court as evidence of probate — it is then the proof used to conduct all of the necessary transactions for the estate.

Not all Estates require a Grant of Probate. If none of the asset holders request a Grant of Probate from the Executors then there may be no need to apply for Probate.

The types of assets where a grant of Probate will be necessary include:

• Solely Held Real Estate
• Bank Accounts and Share Holdings in excess of $50,000
• Nursing Home Accommodation Bonds
• Superannuation if it is paid to the Estate

Examples of Assets that do not require Probate include:

• Jointly held assets including real estate, shareholdings and bank accounts
• Motor vehicles
• Small bank accounts and shareholdings
• Superannuation paid directly to beneficiaries

In many people’s minds the word that often follows “Probate” is “Duty”. Probate Duty was abolished in 1984 and is no longer payable. While there is a Court filing fee this is not a duty based on the value of the estate as was the case between 1870 and 1984 in Victoria.

The Estates team at OFRM are always willing to assist with any estate matters and you can call them on 03 5445 1000. Make sure you look at the other information regarding estates on our website as well.

It's not equal!

In life it seems that few things are fair. Most people seem to think that what someone leaves us in a Will should be equal and therefore fair. This is not always the case.

When making a Will a willmaker is entitled to make any decisions that they wish with regard to who receives what and how much.

Courts are very aware of a willmaker’s entitlement to do this. It is only in very significant circumstances that they intervene to change.

Currently in Victoria the only people that can make a claim against an Estate is:

• spouse or partner,
• a child,
• step-child or
• a person who has always believed that they were a child of a deceased.

If you fit into one of the categories you may be eligible to challenge how things were divided in the Will. However, it is not enough that you were not treated equally. To make a claim to change someone’s Will and obtain provision from a loved one’s estate you must meet a range of criteria.

What you believe to be fair and equitable may not necessarily be so in the eyes of the Court.

Where there are some young children and some older children in a family, an equal division of a willmaker’s assets may not reflect the difference between what children have already received (say for education expenses) and what they may need in the future. An unequal division may also be appropriate where a particular child has made a more significant contribution to a willmaker’s estate, such as by working on the family farm or a child with a disability may have a greater need for a willmaker’s assets.

If you believe that a willmaker should have made provision for you it is important to seek legal advice from a lawyer such as those in our Estates team who are experienced in such matters. Call 03 5445 1000.

What is fair is not always what is equal.

When is the right time to make a will?

Most people never know when they might die and consequently a Will should be made as early as possible in your lifetime.

Make your first Will before turning 30 and then update it when a change is necessary. Most people will make between 2 to 4 Wills during their lifetime. There are a number of things that can influence when is the right time for you to make your Will.

You need time. Occasionally it is necessary to obtain more information from your superannuation fund, complete a title search, check trust deeds, liaise with an accountant or financial advisor or seek feedback from family and friends. Some Wills can be completed in a day, but other Wills might require several weeks to collate all of the necessary information.

You need knowledge. There are lots of tricks and tips about Wills that are good lawyer can tell you. You need to know this information so that you can apply it to your own circumstances make the Will that best suits you.

You need to be in the right frame of mind. Making a will when you are angry, hurt, depressed or otherwise unhappy with life is usually not a good idea. A Will should not be used as a mass weapon of destruction to hurt people that have upset you. A Will should be used to make life easier for those that behind and to reward people that are important to you.

I can tell you the wrong time to make a Will. When you are dying and literally have days to live is not the best time to make a Will, although some people have no alternative because they have never made a Will or the Will that was made 20 years ago is so horribly out of date. If you are lying in a hospital bed, your mind can be distracted by pain, anguish, and the sheer miserableness of your own condition. When making a Will, you need to weigh up many matters and your memory needs to be in good shape and you do need a reasonable level of emotional energy. You can make a good Will if you are dying or very unwell, but at another time the task would have been easier.

The best thing you can do is consider making a Will now by making an appointment to see one of our wills lawyers by calling 03 5445 1000. It's best to get the ball rolling.

The Perils of Leaving It to Chance

What happens if I die without a will? I’m sure the default outcome for many is the common sense approach of “It’ll be right.”

While in some cases the above, relaxed attitude to estate planning may fortunately lead to the desired result, how many of us know exactly what the rules of intestacy may produce in if we die without a will?

If you leave a partner and no children your partner is entitled to 100% of the Estate. From an asset perspective this could be the preferred outcome. However there are added complications of administering an Estate without a will for without one, simple tasks such as changing the registration of motor vehicles become significantly more difficult.

What if I leave a partner and children? The first $100,000 will go to your partner along with a third of the remainder. The remaining two thirds go to the children, regardless of age. The complications of this formula are obvious when it comes to estates comprising solely of the family home.

While the above two examples have their complications the final example is a clear demonstration of why it is best not to leave it to chance.

The deceased was separated from her spouse but not divorced, never re-partnered, never had children. She also never made a Will. She always assumed that her estate would go to her parents as her next of kin. When she died, her spouse inherited her entire estate under the rules of intestacy.

Due to a recent change in the Victorian legislation her parents were not eligible to make a claim against the estate as they were too far removed. There was nothing that could be done after her death.

Making assumptions about estate planning can lead to undesirable results, you are much better to plan for the future and make a time to discuss your Will with one of our lawyers – phone 03 5445 1000 to make an appointment.

I'm young and have no assets so why should I bother making a will?

I am 31 years old, I have two children and a husband, I own my mortgage, the bank owns my house and I own very little, so why do I need to make a Will?

Interestingly, a significant number of young people when considering making a Will often don’t make one because they believe they do not own enough assets. The common misconception is “I don’t have much, so it’s not really going to matter”.

The truth is that quite often we have far more assets than we believe. Many of us have life insurance, we have superannuation (with some insurance component attached), we have some equity in a home, and we may have some small bank accounts.

Whether we realise it or not, these small amounts can actually can add up to a significant amount of money.

So, if I don’t make a Will where does this money go?

If you don’t make a valid Will, there can be significant ramifications for your family in the event of your premature death. The rules of intestacy provide that in circumstances where you die without leaving a valid Will, your spouse is entitled to the first $100,000 of your Estate. The monies remaining are then divided into thirds, with 1/3 of these funds being paid to your spouse and the other 2/3 being paid to your children. This can lead to a situation where your spouse and your children own your home together. While this sounds workable in theory, in practice, it means that it is incredibly difficult for your spouse to move freely, have access to money in the event of a necessity and may make it difficult be able to provide for the ongoing costs related to raising children. It also may have an impact on your children having access to first home owner grants and schemes in the future.

The death of any family member is incredibly stressful and emotional time. The failure by a spouse to leave a Will at an age can increase the stress and anxiety for family members significantly. Making a Will is a very small step in ensuring that your family is taken care of when they really need it.

Making your wishes clear becomes even more important if you are in a second relationship where there may be more than one child or you may both be bringing children to the relationship. How you treat these children may be vastly different depending on your personal circumstances. The failure to leave a valid Will can have a disastrous impact on the assets available for your loved ones in the event of your death.

Look after those who love you most and make a Will, it is a small thing you can do that will mean so much once you are gone.

Why make a will on separation

So, your relationship has ended. Why should you now update your will?

• If you have children it is extremely important to make a new will.

• If you are married and do not have a will, even though you might be separated, your spouse will automatically receive all of your personal chattels, plus the first $100,000 of your estate. If your estate exceeds $100,000 then your spouse will receive one third of the excess and your children will receive two thirds of the excess.

  • However if you make a will, then your assets are distributed in accordance with your wishes.

• If you do not have a will and if you are not married, but separate and have children, then all of your assets will pass to your children, but the person entitled to administer your estate will be the parent of your child or children.
  • This default position might be acceptable, but it is also quite likely that you would rather that other people can be in charge of looking after the funds for your children until they reach an appropriate age.

• Although you might not consider that you have many assets, it is quite surprising when you actually attempt to list the value of the items that you own.

  • If you have a will, then it is usually very easy for your executor to administer your estate, particularly if the estate is small. If there is no will, then the costs of administering your estate become far more expensive and, of course, the statutory formula for distribution of your estate may not be ideal.

• If you have superannuation, you probably need to ensure that your superannuation benefit is not paid to your estranged spouse. Separation does not make your spouse ineligible to claim your superannuation benefit. You should make a binding death benefit nomination with your superannuation fund and you should also make new provision in your will.

• For a lot of people, the idea of having to make a will is challenging, particularly if there are other stressful issues in your life. However, after talking to an experienced lawyer, most people can create a will which accurately reflects their wishes and, in most cases, is relatively straightforward. A lot of people are then extremely relieved to have that important issue resolved.

• You might think you are better to delay making a will until your family law property settlement is finalised. Our experience is that you are better to make a new will soon after separating and update it, if required, when your property settlement is finalised

Most people put off making a will, because they are waiting for an event which will prompt them to complete the task. Entering into a relationship would be a good time to make a will. Ending a relationship is absolutely the best time to make a new will or update an existing will.

Death and the Internet

If you die then your Will leaves your assets to your beneficiaries. But what happens to all of your online and digital accounts such as Facebook, iTunes, Twitter, Amazon...?

First, you must look at the terms and conditions in relation to each account. As a lawyer, I should tell everyone to read the Terms and Conditions before they tick the agreement box, but I don't read them myself. Life is too short to waste reading jargon that is impossible to understand and takes an endless amount of time to do so.

However there is a common theme running through most online accounts. The organisation gives you the right to use the account during your lifetime, but upon your death there are no ownership rights that pass to your next of kin or beneficiaries in a Will. In other words, it is a right to use and not a right to own.

If you have an Apple iTunes account, then you are given a licence to listen to the songs that you have purchased. Unlike the purchase of a CD at a shop, there is nothing physical for you to own. You merely have the right to listen to the music held on your account. While you are alive, you cannot transfer control of your iTunes account to another person to use. The right to listen to the music is personal to yourself¹. Upon your death, there is no legal entitlement to listen to the iTunes music that can be passed on to anyone else.

Similarly, Facebook allows you permission to operate your account, but Facebook owns and controls the site. Upon death, Facebook have the ability to memorialise an account which prevents anyone from logging into the account and, obviously, no new friends can be accepted. Depending upon the settings of the account, friends can share the memories on the memorialised timeline. Facebook have indicated that they will delete the account of a deceased person if requested by family members.

The storage of passwords and other sensitive information on the internet is very important. Keeping in mind that your Executor may not have the right or ability to access accounts after your death without the password, perhaps it is a good idea to keep copies of any information on a separate storage device and kept in a safe location.

The internet has evolved at a very rapid pace. But the issues around the internet and death have evolved much more slowly and I am sure that there will be a lot more on this over the next few years.

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1. Apple's Family Sharing does allow for limited sharing amongst family members.↩