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Avoid the wreckage...

Written on the 29 June 2010 by Warwick Gilbertson

Our litigation solicitors are often engaged in trying to solve problems after the event - a little like carefully picking through the wreckage after a car has gone over the cliff.

That is also why we have a team of passionately dedicated estate planners. Estate planning is all about creating structures to prevent the car from going over the cliff. It is about seeing problems in the future and putting in place a plan to avoid them for you and your family.

A Will is but a part of estate planning. It is a part of the plan to provide for people who are important to you. Why we have allowed Wills to be degraded in importance is beyond understanding. But, we have. There are very few people who enter the world of purchasing property without relying upon good legal or conveyancing advice. We rely upon the skill and care of solicitors or conveyancers to make sure the property we are purchasing is registered in our name and any problems attached to the property are either resolved or brought to our attention.

A Will is not about the purchase or sale of one property. It concerns and governs all of your assets. It is about the conveyance of your home, your investment property, your beach house, your investments, your shares, your business, your farm, and all of your personal property. And yet, we think that a Will is simple and have been told "No, that won't cost much."

"Well Joe, what do you want to do??" This is the typical question asked of the client when he or she presents themselves to make their Will. But, this is only the first stage of estate planning.

There needs to be a thorough investigation of what assets Joe actually owns and what assets he treats as his own but may be owned by another entity such as a company or family trust. There also needs to be a careful consideration of Joe's personal history. You see, Joe's been married before and has three children from that marriage. He now lives in a de facto relationship with Mary who also has two children from a former relationship.

" What's that got to do with my Will? Nobody ever asked me about this before."

Planning to achieve Joe's estate planning objectives is going to be difficult. We've only scratched the surface with the issues raised so far.

"But surely you only ask these questions if the person is extremely wealthy."

It is often more important that these questions are asked in modest estates than they are for people who have considerable wealth. The impact of a mistake resulting in a large liability to the Australian Taxation Office or resulting in a protracted Court case will have more affect on a small estate than on a large one.

To help Joe avoid a wreckage, we would recommend he fully identify potential problems of the future, and put in place a plan to avoid them for him and his family.


If you have any further questions about this topic or you'd like to discuss a related matter, please do not hesitate to call us on 1800 994 279 or email us. A member of our Wills & Estates team will endeavour to respond to your enquiry within 24 hours.

- Warwick Gilbertson
Partner, Wills & Estates Lawyer

Warwick Gilbertson - Wills & Estates Lawyer

Will Disputes in NSW


Author: Warwick Gilbertson
Publications

Family Law

Property settlement and contributions after a long marriage ends

When a court makes a decision about property settlement it follows a four step process: Ascertaining the property owned by the parties, including the value of the property. Assessing the contributions made by each party. Examining the future needs of the parties. Ensuring that the decision made is just and equitabl...

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Lump sum contributions in property settlements...

It is often the case that in a marriage (or in a defacto relationship) one person makes a significant financial contribution by bringing substantial assets into the relationship or receiving assets during the relationship (eg an inheritance). If the parties separate what effect does this financial contribution have on the division of the ...

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Is there an automatic right to family law property settlement after a long relationship?

Since the decisions of Stanford and Bevan, the Family Court has considered a number of cases where it has been argued that even after a long relationship it would not be just and equitable (or fair) to Order that a property settlement occur. The cases above reinforce that when an Order is made for a property settlement under the Family La...

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Paternity Disputes in the Family Court

While it is very rare that there is a dispute about who the mother of a child is, situations do commonly arise before the Family Court concerning the paternity of a child. There are very significant legal and emotional consequences that may follow from a declaration as to parentage. Such matters include and are often linked to application...

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When couples separate, they often have the problem... how do we pay the mortgage?

  A separation generally causes major upheaval for both parties and an issue often arises about paying the mortgage.  Some common problems are: the person who leaves the property may not be able to afford to pay the mortgage having already paid rent on new premises, child support and their own living expenses. ...

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