Wills, Estates & Trusts

Practice area

Wills, Estates & Trusts

Articles, case notes and commentary from the Mullane & Lindsay team.

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Contested Wills… the Court procedure

When a person intends to contest a Will, after establishing eligibility, he or she must commence proceedings in the Supreme Court. The District Court has jurisdiction however the Supreme Court…
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Making a Will - beware the assets test

A couple who receive the aged pension and own their own home can have combined assets of up to $380,500.00 without their pensions being affected. If they have combined assets…
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When is a Will a Will?

Section 8 of the Succession Actprovides that a document (or part of a document) that “purports to state the testamentary intentions of a deceased person and has not been executed…
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Charity does not always begin at home

Lever v Attorney General of NSW [2018] NSWSC 838 A Will-maker left a gift of approximately $4.5m to her nephew and his wife to create a trust to “benefit women…
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Contested Will… when a claim can be made

Section 58 of the Succession Act 2006provides that an application to contest the Will of a deceased person must be made no later than 12 months after the date of…
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Charity in Wills - Don’t waste the gift

Wills are ambulatory. The circumstances existing on the death of the Will-maker apply.  This poses difficulties since most people cannot help but write Wills with “today” in mind. A recent…
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The aging process -legal mental capacity

In Re Estates Croft, deceased [2018] NSWSC 1303 a couple with 6 children, made last Wills which favoured certain children rather than each other.  This led to some children receiving more of the…
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Statutory Gap for Unsecured Trust Creditors?

It is clear that the priority of unsecured creditors in relation to an insolvent individual are to be dealt with in accordance with the statutory regimes set out in the Bankruptcy…
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Why “he said so” is not enough

Families do not usually make sure that promises are recorded in writing or documents evidencing transactions are kept. Failing to ask the “what if” questions (which lawyers are trained to…
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The Value of Keeping Wills safe

A woman died unexpectedly in a car accident.  A month before the accident she had handwritten a new Will.  She told her girlfriends that, having separated from her husband she…
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Time to move on? A new test for knowledge and approval

Justice Leeming has commented that whilst Australia is relying upon nineteenth century English decisions, England has in fact moved on and it might be preferable for NSW law to do…
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Words - choose what you mean

In blended family situations lawyers are often asked to draft a Will which gives the “new partner” the right to reside in the house for life.   Often the widowed partner…
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Be careful when you authorise access to your bank account

In a recent case, Iannella v Stirans by her tutor the NSW Trustee & Guardian [2019] NSWSC 1181, an elderly widowed pensioner living alone signed an authority for a neighbour to operate…
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Firearms in Deceased’s Assets

It happens sometimes that a firearm is included in the assets of a deceased person.  The firearm maybe registered or it may be unregistered.  The Firearms Act 1996 (“the Act”) allows an…
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When can the Guardian perform his or her role?

The Guardianship Act NSW 1987 (‘the Act”) allows a person over the age of 18 years (“the appointor”) to appoint another person to be his or her guardian.  The appointment must…

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