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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

Wills

Court Authorised Wills

Since 1 March 2008 the Supreme Court has been authorised by sections 18 to 26 inclusive of the Succession Act 2006 to make a will for a person who lacks testamentary capacity and also to alter or revoke totally or partially a will of a person who lacks testamentary capacity. Examples of circumstances in which an application for a Court au...

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Changes to Powers of Attorney

There have been changes to legislation applicable to Powers of Attorney. As a result there are now two documents available - a General Power of Attorney and an Enduring Power of Attorney. Firstly, what is a Power of Attorney? It is a document where you, the principal, appoint a trusted person or people, the attorney, to...

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A Will is NOT "One Size Fits All"

When it comes to something as important as your Will, you need to have a Will that is customised and "tailored to fit" you and your individual circumstances. It's often said that your Will is like shoes and clothes… one size DOES NOT fit all! Personal circumstances vary greatly from one person to the next. If you don&...

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Estrangement: What does it mean in the law of succession in New South Wales?

Estrangement has been described as “the condition which results from the attitudes or conduct of one or both parties” (Andrews v Andrews [2011] NSWSC 115). On some occasions in claims for family provision, the condition of estrangement comes before the Courts for determination as a result of the failure of a testator to make prope...

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Company Power of Attorney

Consider this situation... You are the sole shareholder and officer of the company that is your primary business vehicle.    You have a Will and it is all up-to-date so when you die you should be protected – right? As you understand it your shares in the company will pass under the terms of your Will to your nomin...

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