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The Importance of Wills for Young Adults

THE IMPORTANCE OF WILLS FOR YOUNG ADULTS Few young adults consider the necessity consider estate planning. Preparing a will is necessary as unexpected events can leave families dealing with many avoidable legal headaches. Without a will, your assets, including savings, superannuation, and even digital assets like cryptocurrency, are left in uncertainty. Q: What are the consequences of dying without a will? A: Dying intestate, or without a will, means that the distribution of your assets will be determined by state legislation. This often leads to a more complicated and lengthy process, as the state will follow a predefined hierarchy to allocate your assets, which may not align with your personal wishes. This process can be complex and time-consuming, leaving your loved ones to navigate legal hurdles during an already difficult time. Q: How does superannuation and life insurance factor into estate planning? Many young adults are unaware that superannuation and life insurance do not automatically form part of their estate. To ensure these assets are distributed according to your wishes, you need to make a binding death benefit nomination with your super fund. This nomination directs the fund to pay your benefits to your chosen beneficiaries and must be renewed every three years to remain valid. Q: What should young adults consider about digital assets? If you possess any digital assets, such as cryptocurrency, these require specific attention in a will due to their unique nature and the way they can be accessed. Many people may not be aware that without knowing where the digital currency is stored or having access details, these assets can be lost forever. Therefore, it is essential to provide clear instructions to the executor on how to access these digital assets. This includes information such as wallet keys, account details, and any necessary passwords to ensure that these assets are not forgotten or rendered inaccessible. Conclusion Even if you are young and healthy, having a will is a crucial part of planning for your future. It ensures that your assets are distributed according to your wishes and spares your loved ones from unnecessary legal complications. By taking the following steps now, you provide peace of mind for both yourself and your family: Estate Planning: Have a Will prepared with the assistance of a legal professional  to ensure that your wishes will be followed. Nominate Beneficiaries: Complete binding nominations for your superannuation and life insurance. Protect Digital Assets: Document access details for digital assets like cryptocurrency. Review and Update: Regularly update your will and nominations to reflect any life changes. Author Adam Hussain.

2024-07-15T13:41:22+10:00July 15th, 2024|Wills & Estates|

Insights into the Powers of Attorneys: Types, Responsibilities and Processes

Insights into the Powers of Attorneys: Types, Responsibilities and Processes A Power of Attorney (POA) is a legal document that grants authority to another person (the attorney) to act on behalf of the principal in a range of matters. The principal is the person who grants the power and can specify the scope of authority granted in the POA. The attorney’s role is to make decisions and take actions according to the wishes and best interest of the principal. This can include actions such as managing bank accounts, signing documents, accessing, and managing investments, making legal decisions, and more depending on the terms outlined in the POA document. Types of Power of Attorneys In Queensland, there are two main types of POA: General Power of Attorney (GPOA) and Enduring Power of Attorney (EPOA). A GPOA grants someone the authority to act on behalf of the principal for a specified timeframe. For example, if someone is travelling for a limited period of time, they may grant a GPOA to a trusted person for that time. The appointed attorney can manage bank accounts, sign contracts, access and manage investments, and make legal decisions outlined in the document. A GPOA ceases to be valid upon reaching its specified expiration date as indicated in the initial agreement. Additionally, the principal retains the right to revoke the GPOA while still of sound mind and capable of making decisions. An EPOA, on the other hand, is used to grant someone the authority to act on behalf of the principal in financial and legal matters, even if the principal becomes incapacitated due to illness or injury. Unlike a GPOA, an EPOA remains effective and essential for long-term planning and the continuous management of the principals’ affairs during periods of incapacity, such as age-related conditions or unforeseen health issues. Responsibilities Attorneys appointed under a POA carry significant responsibilities. They must act in the best interests of the principal, maintain accurate records of all transactions and decisions made on behalf of the principal. Additionally, attorneys must avoid any conflicts of interest and prioritise the principal's needs first. Limitations on powers granted may include specific instructions regarding financial transactions, property management, or healthcare decisions. These limitations ensure that the attorney’s authority aligns with the principal's intentions. Unfortunately, some individuals may abuse their POA position by misusing funds, making unauthorised decisions, or neglecting their responsibilities. This can result in financial harm, legal issues, and emotional distress for the principal and their beneficiaries. It’s crucial to choose a trustworthy and responsible attorney and regularly monitor their actions to prevent such abuse. Granting a POA involves several key steps: Firstly, the principal must carefully select someone they trust to act as their attorney. Your attorney should be reliable, responsible, and capable of making decisions on the principals’ behalf. Then, the scope of authority that is required must be determined. This could include financial matters such as managing bank accounts, paying bills and handling investments as well as specific conditions and limitations that [...]

2024-06-06T12:43:30+10:00June 6th, 2024|Wills & Estates|

The Perils of Artificial Intelligence and Estate Disputes

The Perils of Artificial Intelligence and Estate Disputes In the ever-evolving landscape of technology, artificial intelligence (AI) has emerged as both a tool for innovation and a source of ethical dilemmas. One such dilemma that has recently come to light is the unauthorised use of voices through AI, raising concerns about privacy, consent, and the protection of individuals' rights. In Australia, where the debate over AI ethics is gaining traction, it's crucial to address these issues head-on to safeguard against potential abuses and ensure accountability in the digital world. The unauthorised use of voices in AI applications presents a multifaceted challenge with far-reaching implications. Whether it's replicating a celebrity's voice for commercial purposes or synthesising the voice of an acquaintance without their consent, such actions raise serious ethical questions about the boundaries of technology and the rights of individuals. At the heart of this issue is the concept of consent. Every individual has the right to control how their voice is used and disseminated, and this right should be respected in the digital world as much as it is in the physical world. Unauthorised use of voices through AI not only violates individuals' privacy but also undermines their autonomy and agency over their own identity. Recently, American Estate lawyers for the late comedian, George Carlin, successfully won a court case between the estate of George Carlin and the makers of a podcast who used generative artificial intelligence to impersonate the late stand-up comic’s voice and style for an unauthorised special.  This case marks what’s believed to be the first resolution to a lawsuit over the misappropriation of a celebrity’s voice or likeness using AI tools. It comes as Hollywood is sounding the alarm over utilisation of the tech to exploit the personal brands of actors, musicians, and comics, among others, without consent or compensation. Prominent Australians such as Gina Rinehart, Dr. Karl, Andrew Forrest, and Margot Robbie have also raised concerns over unauthorised alterations of their voices and images through AI, alongside the illicit use of their likenesses in the promotion of goods or fraudulent schemes. In Australia, a Will must be in writing to be valid, so anything a person says verbally cannot be enforced as a legal Will.  However, the recorded video or audio wishes of a Will maker have been accepted by the Courts to clarify the wishes of a deceased person. Accordingly, it is foreseeable that we may start seeing disputes arise where a disappointed beneficiary were to produce a recording of the deceased that purportedly altered terms of the Will in favour of that beneficiary, which was actually produced by AI using the deceased’s likeness. So, in this day and age, it is important for the executor or administrator of a deceased estate to seek legal advice if they believe that AI-based subterfuge pertaining to a Will is afoot. Steve Hodgson, senior associate, and the Estates Team at Salerno Law have assisted many individuals and couples understand their options and plan their estates per [...]

2024-05-09T15:35:43+10:00May 9th, 2024|Artificial Intelligence, Wills & Estates|

Securing Tomorrow: Understanding Estate and Non-Estate Assets and the role of Nominations

Securing Tomorrow: Understanding Estate and Non-Estate Assets and the role of Nominations. Estate planning plays a pivotal role in guaranteeing the orderly distribution of assets according to your wishes following your death, thereby safeguarding the financial well-being of your loved ones. It entails planning a comprehensive strategy for the administration of your estate’s assets, properties, and investments. It is essential to prioritise understanding the diverse components comprising an estate and methods to guarantee that its state of administration is clear. Understanding Estate and Non-Estate Assets Estate assets are assets including real property, investments, personal belongings, and other tangible assets. The distribution of estate assets is overseen by the executor. Conversely, non-estate assets are those that are not automatically governed by a Will and do not form part of the deceased individual’s estate upon their death. This can include superannuation funds and life insurance proceeds held outside of the estate. Non-estate assets include superannuation, life insurance payouts and assets held in trust. The distribution of non-estate assets requires specific arrangements made by the individual prior to their death, as they may not be covered by terms of the Will. Superannuation and life insurance are often crucial components of estate planning and act as significant sources of financial support for loved ones. Nominations In estate planning, nominations involve choosing who will receive your assets or take on specific roles after your death or become unable to make decisions. This includes naming beneficiaries for your financial accounts and insurance policies, as well as appointing executors, guardians for minor children, or trustees to manage assets for beneficiaries. A binding nomination legally obligates the trustee of a superannuation fund or insurance policy to distribute assets according to the specified beneficiaries outlined by the nominator. You can also elect a non-binding nomination which can strip you of your decision-making authority, leaving you with limited control over important matters. This can lead to potential repercussions and outcomes that may not align with your preferences or best interests. Given the importance of Superannuation and Life Insurance in securing financial support for your loved ones, it's crucial to address these matters properly. Setting up clear legal arrangements helps protect these assets and ensures your beneficiaries are taken care of. Importance of Professional Guidance Navigating estate planning can be especially challenging, particularly when it comes to nominations and distributing assets, therefore it is important to obtain appropriate advice. Salerno Law excels at guiding clients through this complex area of Wills and Estates. Our team comprehend the intricacies of Wills and Estates and offers tailored and accurate guidance that aligns with each individual's circumstances. Author: Liam Denniston & Steven Hodgson

2024-04-02T15:16:36+10:00April 2nd, 2024|Wills & Estates|

Woman Forced to Give Jacktpot to Husband in Divorce

Navigating Lotto Winnings and Divorce: A Comprehensive Guide In a twist of fate, winning the lottery can be both a dream come true and a life-altering event. But what happens when you win the lottery after a divorce or de facto separation? And how are family contributions, windfalls, and lottery gains treated during property settlement proceedings? News.com.au reports that a woman in California was ordered by the Court to give her ex-husband the entirety of her lottery winnings after failing to disclose the windfall in her property settlement. In 1996, after 25 years of Marriage to Mr Thomas Rossie, Mrs Denise Rossi won $3.1 million US dollars ($4.6 million AUS dollars) the lottery and eleven days later filed for divorce. Denise did not mention the winnings to her ex-husband and failed to disclose the windfall of $3.1 million in their property settlement. Two years following the property settlement, Mr Rossie came to know of his ex-wife’s lottery winnings and obtained a Court ordered injunction. Mr Rossie filed in Court and successfully obtained an order that Denise pay her ex husband the entirely of her winnings back in instalments. In this article, we will explore these questions and provide you with insights on handling lottery winnings during or after divorce. Q: What Happens if I Win the Lottery after Separation from my Spouse or Defacto Partner - How Do Family Law Property Proceedings Actually Work Winning the lottery can be an exhilarating experience, but it may also bring about complications, especially if you are going through a family law property settlement. 1. Do I Have a Duty to Disclose My Lottery Winnings? Similar to the US, parties to a property settlement in Australia have an obligation to make full and frank financial disclosure.[1] This generally includes bank statements, pay slips, tax returns and disclosure of any windfalls. A consequence of non-disclosure during proceedings, the party who fails to disclosure documents may be held guilty of contempt for not disclosing the document and may be ordered to pay the other party’s costs.[2] Further, the Court the Court may stay or dismiss all or part of a party’s case who fails to disclose documents.[3] 2. How are Family Contributions during the Relationship Important? During marital or de facto separation proceedings, Courts will often consider the contributions made by each spouse or partner to the family during the relationship.[4] This includes both financial contributions, such as income earned, as well as non-financial contributions, such as caring for the home or raising children.[5] Timing is of particular importance to a determination of contributions.[6] Contributions made at the beginning are typically given less weight than contributions made towards the end of the relationship.[7] In addition to contributions of parties to the relationship, a Court must also be satisfied that an Order is just and equitable.[8] Q: How are Windfalls, and Lottery Gains treated in Family Law Property Proceedings – What Does It All Mean? 1. Q: What if I Win Big Before Separation? A windfall gain [...]

2023-08-11T12:41:26+10:00August 11th, 2023|Family Law, Litigation, Wills & Estates|

R E S P E C T… Find out what it means to me!

R-E-S-P-E-C-T Celebrity Estate Dispute Known as the Queen of Soul with hits such as ‘Think’, ‘I Say a Little Prayer’, and ‘Respect’, Aretha Franklin sadly passed away in 2018 at the age of 76, and while her death was over 5 years ago, the battle for her estate continues in the USA. History of the Dispute During her lifetime, Aretha prepared two separate handwritten Wills. The first Will was written sometime in 2010 while the second Will was written in 2014.  The 2014 Will was hidden in Aretha’s couch and subsequently found after her death, both inscribing some alterations as to which of her sons would inherit certain aspects of her estate. The 2010 Will lists Aretha’s niece, Owens, and her son, White, as co-executors and says Kecalf and Edward Franklin, Aretha’s other sons, “must take business classes and get a certificate or a degree” to receive a benefit from the estate. The 2014 Will crossed out White’s name as executor and has Kecalf Franklin in his place. There was no mention of business classes. Kecalf Franklin and the grandchildren would get his mother’s main home in Bloomfield Hills, which was valued at $1.1 million when she died but is worth much more today. Arguments put forward by Kecalf and Edward included that the 2014 Will out-dated the 2010 Will. On the contrary, it was argued that the 2014 Will is merely a draft, not being official and legal in nature particularly due to it being difficult to decipher through its handwriting. Franklin’s executor who helped oversee Franklin’s estate was unable to determine which Will was deemed valid during the probate process meaning the matter went to trial. It was found that the 2014 Will was established to be a valid Will by a jury, ending a long dispute between Franklin’s children. What would have happened if the dispute was considered by the Australian Courts? Usually, the Will with the most recent date that was validly written and executed is a person’s last Will and testament. This would dictate how the estate is divided. However, if you find a previous Will and there is a reason to suspect or contend that the latest-dated Will was not created validly, the penultimate valid Will may be binding. Testamentary intention is another important factor that a court will consider when determining the validity of a Will, because it distinguishes the Will as being written with the intention of being the last Will and testament. It is usually expressed in a strong opening statement, identifying the testator and their intention to make the Will and revoke all former Wills. More importantly, the Court will consider whether the document itself is capable to show it is intended to be a Will. The Court has recognised Wills deemed valid that contain a convincing testamentary intention. Including words such as ‘My Will’, could suggest you, as a testator, are aware of your assets with the intention of passing them on. How we can learn from this [...]

2023-08-10T14:19:54+10:00August 10th, 2023|Litigation, Wills & Estates|

Friends with Benefits Inherit

Friends with Benefits to Inherit We’ve all seen a movie like ‘No Strings Attached’ starring Natalie Portman and Ashton Kutcher, where friends try to have their cake and eat it by extending their relationship to the bedroom while trying to let feelings interfere with the friendship.  As it is in real life, casual relationships or ‘friends with benefits’ can become messy socially, but not many people think about the legal ramifications that can play out. In this article, we will look at what happens when a friend who was receiving ‘physical benefits’ does not benefit financially from their lover’s estate when they die under a Will. Challenging An Estate When it comes to inheriting property upon the death of a loved one, the relevant legislation in Queensland entitles a family member or spouse to make a claim for a distribution from the estate if the Will gives them less than they believe that they deserve or if they are left out entirely. The legislation also grants de facto partners the same inheritance rights as legally married couples, with the ‘de facto’ meaning a relationship between two people, from either the same or opposite sex, which lasts for a period of two years or more and being up until the deceased’s death. However, does a ‘friends with benefits’ relationship qualify as a de facto relationship, thus allowing the surviving ‘friend’ to make a claim against their lover’s estate? What the court will consider? The Courts have had a few opportunity to consider this modern type of relationship and have largely interpreted them on a case-by-case basis.  Nevertheless, when presented with this question, the court will consider among other things: the length of the relationship; the nature and extent of common residence; and whether there was or had been a sexual relationship. Recent Cases Interestingly, the NSW Supreme Court was recently tasked with considering a family provision application based on a ‘friends with benefits’ relationship in the recent case of Estate of Zaheer. In this case, the presiding judge, Justice Hallen, concluded that ‘friends with benefits’ meant “a friend with whom one has an occasional and non-committal sexual relationship”.  However, the crux of the dispute came down to the question of whether the friends with benefits relationship could also be interpreted at the higher threshold of a de facto relationship.  In the end, Justice Hallen ruled that the applicant should receive 15 percent of the deceased’s estate on the basis that the friends with benefits relationship had certain aspects of a de facto relationship arrangement, namely the fact it lasted up until the deceased’s death. In another case, the Estate of HRA deceased, the Court made similar interpretations with the key takeaway being just how important it is that relationship lasted up until the death of the deceased person – though it did not have to be physical up until the death.  However, in this matter, this could not be established after it was found that the last real contact the [...]

2023-08-03T13:32:04+10:00August 3rd, 2023|Family Law, Wills & Estates|

CIRCUMSTANCES ALLOWING A WILL TO BE CHALLENGED AND VARIED, OR INVALIDATED

INTRODUCTION A Will is a legal document that outlines the distribution of a person's assets after death and must meet specific legal requirements to be considered valid. In Queensland, a Will must be in writing, and the testator must sign the Will in the presence of two witnesses who then also sign. A Will that does not meet these legal requirements can be declared invalid. There are also other circumstances which can render a Will invalid. For example, a Will can be challenged and varied, or even invalidated by the Court because of undue influence, fraud or forgery, or lack of testamentary capacity or testamentary intention. In these instances, the Court will then consider the evidence presented and decide based on the case's merits. If the Court finds in favour of the individual disputing the Will, it may order that the Will be set aside or varied to reflect the deceased's true intentions. The Court may also request that costs be paid by the estate or the party responsible for the dispute. CIRCUMSTANCES ALLOWING A WILL TO BE CHALLENGED AND VARIED, OR INVALIDATED 1. Undue Influence Undue influence occurs when someone exerts pressure on the person making the Will, known as the testator, to create a Will that does not reflect their true wishes and is another way the validity of a Will can be challenged. If a beneficiary, caregiver, or family member coerces the testator into making a Will that benefits them unfairly, the Will could be invalidated by a court. 2. Fraud & Forgery Similarly, a fraudulent or forged Will can also be struck-out. A fraudulent Will is created by someone other than the testator, while a forged Will is a document that appears to be signed by the testator but is not. 3. Lack of Testamentary Capacity or Testamentary Intention The “testamentary capacity” of the deceased is also an essential requirement for a valid Will. For a Will to be valid the testator, must have the mental capacity to understand what they are doing by executing the Will. Accordingly, a Will could be deemed invalid if the testator lacked the capacity to understand the nature and consequences of their actions at the time that they made the Will. Importantly, the testator is presumed to have testamentary capacity unless the court is presented with compelling evidence to the contrary. Further, to be considered valid, a testator must not only have the testamentary capacity to make the Will, but the Will must also accurately reflect the testator’s expressed “testamentary intention”. The language in drafting a Will must be clear and precise, as ambiguity can lead to confusion and disputes. If the Court cannot interpret the testator's intentions from the language used in the Will, it may be invalidated. In other words, at the time of executing the Will, not only must the testator know what they are doing, they must have intention to create the Will and its consequences. Usually, when the validity of a Will is challenged [...]

2023-04-11T12:56:11+10:00April 10th, 2023|Wills & Estates|

Solicitor or Public Trustee?

SOLICITOR OR PUBLIC TRUSTEE? A will is a legal document that details your final wishes and instructions for the distribution of your assets after your death. While a public trustee is a government-run organization that provides legal services to individuals, including the administration of estates, there are several reasons why you should consider instructing a Solicitor to draft your will and thereafter assist with the administration of the estate. Tailored to your specific needs: A will created by a Solicitor can be tailored to meet your specific needs and goals. This will ensure that your assets are distributed according to your wishes and that your family is taken care of after you're gone; Peace of mind: A will created by a Solicitor will be legally binding and can provide peace of mind that your assets and loved ones will be taken care of according to your wishes. The public trustee, on the other hand, may not have the same level of expertise or knowledge of your specific needs and wishes; Avoid potential complications: A well-drafted will can help avoid potential complications and disputes over the distribution of your assets. A public trustee may not have the same level of expertise or knowledge of the law, which can lead to mistakes or disputes; and Cost savings in the long run: While paying for a will may seem like an additional expense, it can actually save you money in the long run. A poorly drafted will or mistakes made by the public trustee can lead to legal battles and additional expenses, which can add up quickly. Australia has its own set of rules and regulations regarding the fees charged by public trustees for managing estates. In most cases, these fees are based on a percentage of the value of the estate, with a sliding scale based on the size of the estate. The exact fee schedule can vary depending on the state, so it's best to consult the specific guidelines for the state in question to ensure you do not incur any unnecessary fees & charges. Example of Fees In New South Wales the Public Trustee outline their schedule online for various services including drafting of a will, executorship, and deceased estate management. Often, beneficiaries of Public Trustee appointed estate matters have complained about excessive fees, long delays in settlement and poor communication. If you had a choice, which scenario would you choose? a) Engage the Public Trustee to draft a free will, knowing your beneficiaries may be subject to high fees and delays; or b) Draft a will through a Solicitor for a minimal fee, nominate the executor of your choice with minimal or nil fee and faster settlement. A Public Trustee drafted will may save you money initially but will ultimately be funded by your beneficiaries – Example below. Joe Citizen engaged the Public Trustee of NSW to draft a free will. The Public Trustee were noted as the Executors of the Estate. Joe sadly passes away the following year. [...]

2023-02-09T11:28:23+10:00February 8th, 2023|Wills & Estates|

Organ Donations in Australia

Organ donations and transplants are far more important than you would think. Currently, only one in three Australians are registered to donate their organs and tissue after death, despite 69% believing that registering is important. This belief is very much founded as there are currently around 1,750 Australians on the waitlist for an organ transplant and 13,000 additional people on dialysis who need a kidney transplant. The wait-time for recipients on the waitlist varies in Australia between six months and four years, sometimes even longer. Despite this, a significant number of individuals believe that it is too difficult to become a donor or the process to become one takes too long. However, almost anyone in Australia can donate their organs and tissue, and it is not a complicated process.  Walk to End the Wait Initiative –  Gordon Rutty or Gordo to most people, is a passionate local Gold Coast resident who wants to raise awareness on the organ donation process in Australia. To increase awareness for organ donation in Australia, Gordo is participating in the "Walk to End the Wait" where he will walk 42 Kilometres for 14 Days, and in “The Orange Ball”, which will be held on Friday, 7 October 2022.  When asked about why he was passionate about this particular cause, Gordo stated that:  “Children with transplants have often experienced significant interruption to their schooling, sporting, and social life. They have missed out on team sports and the benefits of physical activity and sport. Transplant Australia helps these kids adapt to a life with a transplant and to focus on their physical wellbeing. At the World Transplant Games, they can meet other children who have a shared lived experience. Many of them get to take home a medal for ‘show and tell’. Your support will provide subsidies for up to 50 transplant children and their families from around Australia. The money will help them with registration, accommodation, travel, and uniform expenses to represent Australia.” These fundraising efforts are to celebrate children with transplants and their renewed life at the 2023 World Transplant Games in Perth.  For more information on Gordo’s mission, you can visit The Walk to end the wait webpage and the Gordon Rutty homepage. How to become a donor  In Australia, a person with capacity to make decisions for themselves can choose to donate their organs and tissue after death as long as they are over 18 and have recorded their consent with the Australian Organ Donation Register (AODR). However, if you are 16 or 17, you have the option to record your intentions to donate your organs and tissue with the AODR upon your death.  For more information on how to become an organ donor, you can visit The Australian Organ Donor Registry. When organs and tissue can be donated –  Deceased Donor –  For an organ and tissue donation to validly occur, it is essential that the deceased has legally died (i.e., brain death or cardiac death).  To be classified [...]

2022-09-05T15:55:55+10:00September 5th, 2022|Wills & Estates|
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