wills | Swift Legal

Recent Case on Court Made Wills – protecting the children until age 25 years

by Judica Swift on November 2, 2015 Comments Off

Court Made Wills (also known as Statutory Wills) is a fairly new and novel area of the wills and estates legal practice space. The existence of this area can be an incredibly beneficial option available to those that suffer a disability and therefore don’t have the requisite mental and legal capacity to make their own will. The law allows a family member to apply to the Court to permit the Court to make a will for that person in this situation. As you can probably imagine it has a clear formula as to whether the Court could and should make such a will and it has to be one that the disabled person would make themselves if they had the capacity to do so.

In the latest case of JW v John Siganto As the Litigation Guardian for AW & CW, the testator is 30 years old and was severally disabled in a car accident 10 years earlier. The testator’s parents have been his primary carers since his accident and also care for and have custody of his two minor children, AW (13 years old) & CW (10 years). The relationship between the testator and the children’s’ mother had broken down shortly after the accident and she no long has custody of the children.

The Court heard the application by the father to make a will for his son on the basis that the estate to set up two trusts for his son’s minor children to hold their interests in a testamentary trust until they reached the age of 25 years. The primary reason for doing so was that the estate was now quite substantial in value after a favourable outcome from litigation resulting from his son’s accident. In addition to this main benefit, the will was also to benefit the applicant and his wife (his son’s primary carers for the past 10 years) and the testator’s sister who had also shown alot of support to the family since the testator’s accident.

Under the rules of intestacy, his children would receive the whole of the estate in equal shares at the age of 18 years. The applicant’s argument was that such trusts being set up would ensure that the children would benefit from having guidance on how to manage such a large sum of money until they reached the age of 25 years. The estate was estimated to be approximately $9 million. The establishment of the trusts also provided taxation benefits for the children.

The court, being satisfied that the application met all the requirements and it being a will that the testator would make himself if able, allowed the application and proposed will.

You can read the full case here.

We’re coming to Ipswich!

by Judica Swift on July 10, 2015 Comments Off

Our Logan & Scenic Rim branch is extending its service area to include our Ipswich community!

We appreciate how hard it is to get legal advice when and where you need it and that’s exactly why we’re extending our service area. We’re listening and evolving with our clients’ needs and offering all our legal services to our Ipswich communities. This includes all conveyancing services, wills, estates, powers of attorney, trusts, guardianship, retirement planning and retirement village contracts and elder law. And there is still no catch; we still come to you at no extra charge!

If you need assistance with your legals, please contact your local team on 07 5547 7112 or email your local Solicitor, Nikki Gough, at ipswich@swiftlegal.com.au.

See you soon!

Now is the time; Why you should stop and make a Will now

by Judica Swift on April 10, 2015 Comments Off

Do you know what would happen if you passed away?

Do you know who would be tasked with the job of finalising all of your affairs?

Look after your kids? Organise your funeral? Pay your last bills? Do your last tax return? Clean out your house? Sell your stuff? Divide your stuff among your family? Who in your family gets your things? What about your late mum’s wedding ring that was meant to be passed to your kids?

The list of things to consider seems endless, but you have to start somewhere.

There’s a dangerous misconception in the public that things will just “happen” when you pass away and that’s not always correct.

When you don’t have a will, no one has the legal authority to finalise your affairs straight away. Your next of kin might be the most appropriate person, but without the Court’s approval, they don’t have the legal standing to take care of even the little things. And what about if there’s a dispute between family members as to who should look after your affairs? What about if things need to be done immediately? Who does them? And who’s going to be guardian to your children? The costs of sorting this all out after your gone can and usually does far outweigh the cost of doing a will now.

When you don’t have a will, the law sets out how your estate should be divided and it may not be what you want. How your estate is divided among family depends on what family you have; kids, partners; mum and dad.

Your family can be left with the overwhelming difficulty that is passing away without a will (otherwise known “intestate”).

Your will can always be updated and should be as your live evolves and changes with time.

Protect your family, protect your wishes. Now is the time; make a Will today.

Talk to one of our Solicitors. We can make it even easier by coming to you (at home or work) or even meeting via Skype or Live Meeting.

What is Letters of Administration?

by Judica Swift on April 5, 2014 Comments Off

Letters of Administration is:

A legal document;
The process by which the Supreme Court appoints a person to be administrator of a deceased person’s estate and officially authorises the administrator to distribute a person’s estate in accordance with the Rules of Intestacy (i.e. the rules that apply when you die without a Will).

Letters of Administration is a similar process to that of obtaining a Grant of Probate. See our post on Probate here.

The difference between Probate and Letters of Administration is:

What is Probate?

by Judica Swift on April 5, 2014 Comments Off

Probate is:

A legal document;
The process by which the Supreme Court proves the last Will of the deceased as valid
The process that officially appoints the executor as having the authority to distribute a person’s estate in accordance with their last Will

In Queensland, it is not always essential to get a Grant of Probate to administer someone’s estate; this will generally depend on the assets held by the estate and the size of the estate.

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