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Wills - Legal advice is Paramount

Wills - Legal advice is Paramount

Wills are an integral part of estate planning, yet many Australians do not have a Will.

Wills, generally speaking, are a relatively inexpensive way of making sure your assets pass to those you would like to receive those gifts. We sometimes see headline news about estate litigation where a family member, quite often a child, is left out of a Will and subsequently brings a claim against the deceased estate, or where a mistake is made in the Will that requires the Court’s intervention to correct that mistake. Of course, anyone can make a Will, and the ‘self-help’ kits around can be purchased for a few dollars.

However, there can be consequences if you don’t get it right. Recently, we acted for a bankruptcy trustee in a matter in the Federal Court (Cunningham (Trustee) v Gapes, in the matter of Gapes (Bankrupt) [2017] FCA 787). The deceased, by her Will, had left part of her estate to one of her children, who at the time of her death was a bankrupt. The assets of the deceased were her home and money held in a superannuation fund. The deceased had not provided the super fund with a binding death nomination, and the super fund trustee made the decision to pay the super contributions to the deceased’s estate. The Will provided that the assets of the deceased be paid to her children in equal shares. As a consequence, half of the house proceeds and the super monies were payable to the bankrupt’s trustee in bankruptcy. This is just one example of the issues that should be considered when making a Will. Obtaining proper advice can assist in reducing the risk of your gifts going to someone other than the intended recipient.


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