The recent decision upheld by the Western Australian Court of Appeal Blenkinsop v Herbert WASCA 87 (Blenkinsop) outlines the importance of understanding the terms of a discretionary trust deed. More significantly, the case focussed on the nature of the Guardian’s powers and the Court’s jurisdiction to remove the Guardian. 1. What is a discretionary trust deed? A discretionary trust is a common vehicle for operating businesses as they offer
24
Apr 2017
STATUTORY WILLS
In Western Australia (WA), recent legislative developments in 2007, have permitted the Supreme Court of Western Australia to make statutory Wills. Under the Wills Act 1970 (WA) the Supreme Court can make a statutory Will for a person who lacks the capacity to make their own Will (an ‘incapable person’). Although WA has more “relaxed” laws in this area compared with other States and Territories, it is surprising there have
For Probate purposes, when is a missing person presumed to be dead? There is a misconception that, if a person has been missing for 7 years, then that person is presumed to be dead. But an automatic presumption of fact does not arise even if 7 years have passed without any sign of the person in question. In fact, it is possible for a person to be declared dead where
WHAT HAPPENS TO YOUR ONLINE PRESENCE WHEN YOU DIE? How many of you now have one or more of these: Facebook? Twitter? Instagram? Linkedin? PayPal? Email? Frequent Flyer points? Credit card reward points? Online bank accounts? Email? As most individuals would have at least some sort of online presence or would “own” “digital assets”, have you considered what will happen to these “assets” after your death? Do any of these
23
Nov 2016
HAVE YOU LOST YOUR WILL?
HAVE YOU LOST YOUR WILL? There was a recent interesting case heard in the Supreme Court of Western Australia: Larussa v Carr (as Administratrix of the Estate of Giuseppe Larussa) WASC 332 (Larussa case) related to a lost Will and whether it has been deliberately destroyed or in fact had been lost. This case shows the importance of why you should keep your Will in a safe place and
Can your Will be challenged? Recent decision on providing adequately for your children An assumption that many people make is, once you have signed your Will, that your Estate will be distributed according to your wishes when you die. This assumption is quite wrong and careful consideration should be taken when deciding on how to distribute your Estate. A recent case in the Supreme Court of Western Australia, Taylor v
When is a de facto relationship considered to be at an end? A recent decision in the Supreme Court of Western Australia decided this issue in Chan v Waldemar Mazurkiewicz (in his capacity as Administrator of the Estate of Witold Mazurkiewicz) WASC 432 (Chan case). The de facto wife commenced a claim in the Supreme Court for greater provision from the estate of her late de facto husband under
Will the breakdown of your de facto relationship affect your estate planning? If you consider yourself to be in a de facto relationship, what implications does this have for your estate planning? Many people have a misconception that de facto spouses do not have rights similar to those of a married spouse. However, in Western Australia, de facto spouses do have, if not precisely the same rights, then similar rights
Following on from our article examining the right of step-children to challenge the Will of a deceased step-parent, the current family provision legislation in Western Australia allows a number of other family members to make a claim, including allowing a grandchild to challenge the Will of a deceased grandparent in limited circumstances. Section 7(1)(d) of the Family Provision Act 1972 (WA) (the Act) allows a grandchild of the deceased to
19
Apr 2016
An Estate Plan – why you should have one
Many people immediately think estate planning is just having a Will in place. Moreover, when they think of a Will, they think they don’t need one as they are too young or don’t have enough assets. Estate planning is much more than that and set out below are some of the reasons why you should have an estate plan in place. An Estate Plan is not just a Will An