Estate Planning

By John Fitzpatrick, Solicitor Director, Sydney Legal Advisers - May 2010

john FitzpatrickPeople of all walks of life often leave their wills and estate planning to the last minute and often their estates are not set up to represent their best wishes or set up in the right way.

It is imperative that people realise how important this aspect of estate planning is. Have you established your estate to represent your wishes, set up trusts for your loved ones to ensure that their wellbeing is taken care of in the manner that you wish? Have you considered the outcome of the Family Provisions Act or the outcome of a prenuptial agreement and whether this agreement is binding?

UPDATE – ESTATE PLANNING & WILLS

Family Provisions Act – Importance of Documenting Intentions

  • In general terms this Act provides a remedy for people who have not received adequate benefit from a person’s estate.
  • Generally it applies if a spouse or parent omits a dependant as a beneficiary of an estate.
  • Comment – If a Testator wishes to omit a spouse or some other dependant, it is important to document those intentions taking into account that a dependant may challenge their exclusion. The correct drafting of those intentions is extremely important.

Prenuptual Agreements in Australia – Estate Planning

  • Prenuptial agreements can be legally binding in Australia.  This was confirmed by the High Court in the decision of Singer v Berghouse (1994) 68 ALJR 653.
  • In Singer’s case, the deceased’s will was linked to a prenuptial agreement.
  • An important point in this case was that the wife, at the time when the prenuptial agreement was signed, did not expect a higher life style in later life.
  • The High Court inferred that the effect of the prenuptial agreement may decline over a longer period but its importance should not be overlooked.
  • Comment – A prenuptial agreement is certainly worth considering.
  • This is sometimes done be referring to the reason for the exclusion of the “affected” person.
  • The question is how should that exclusion be done to avoid a challenge allowed by the Family Provisions Act?
  • The reason can be communicated in the will or in an independent written statement.  Extreme care needs to be taken.
  • Challenges to such exclusions are becoming more and more common.

Sydney Legal Advisers of Level 7, 117 York Street, Sydney NSW 200 is a small boutique law firm located in the heart of the Sydney CBD. Established in September of 2008, we strive to provide our clients with the best possible advice and outcome in all areas of law that our clients require. Sydney Legal Advisers specialises in various fields of law from Commercial and Business Law to Property and Estate Planning Law.