Byline: Marcus Schivo

Recent decisions of the Victorian and Tasmanian Supreme Courts have highlighted the onus on claimants for family provision from deceased estates to provide adequate evidence of their own financial circumstances.¹

A series of recent decisions of the Supreme Court of Victoria in Fahey v Bird¹ highlights:

• the importance for executors and trustees to keep adequate and accurate financial records of their administration of estates and trusts respectively;
• executors have a positive duty to respond to beneficiaries’ requests for information; and
• the dire consequences that might ensue when such duties are breached.

In this article, Marcus Schivo reflects on the various judgments which considered the behaviour of the executor and more particularly the breaches which resulted in him being jailed.

Significant changes to the Supreme Court of Victoria’s Probate Office fees come into force today, Monday 18 November.

The changes include:

• increased estate filing fees based on the value of the estate;
• a new fee for re-advertising applications for grants of representation;
• a new fee for filing an amended originating motion in an application; and
• advertising an intention to apply for grants of representation i.e. grants of probate, which are no longer published on the Supreme Court website.

Most industry and retail superannuation funds, and almost all self-managed superannuation funds (SMSF), allow fund members to make binding death benefit nominations (BDBN).

There are many myths and misunderstandings surrounding Wills and estate planning, which often come from television shows and movies. This can lead to misconceptions and half-truths when people attend to their own estate planning, or when dealing with the estate of a deceased family member or friend.

While many people make a Will thinking they can leave their estate assets, including their superannuation benefits, to any person they choose, the Superannuation Industry (Supervision) Act 1993 (Cth) (Act) defines who qualifies to receive a superannuation death benefit following the death of a fund member.

Two frequently asked questions we receive from our clients with respect to superannuation are:

A recent decision of the High Court of Australia has confirmed that members of self-managed superannuation funds (SMSFs) can make binding death benefit nominations (BDBNs) which do not have to be witnessed, and do not expire or lapse, subject to the terms of the trust deed of their SMSFs.

Victoria’s family provision legislation was substantially amended by the introduction of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014.

In the second of our Wills and Estates 101 series we speak with Marcus Schivo, a lawyer in our Wills, Trusts and Estates team, to answer common questions around Probate and what you need to do.

Victoria’s family provision legislation was substantially amended by the introduction of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. This Act had the effect of reducing the classes of claimants that may make a claim for provision from a deceased estate, and also the number of claims being filed in Victorian courts against estates.

Remaining married can leave your Will open to challenges

We have seen a number of recent deceased estates where a deceased person remained married at the time of their death, despite having separated from their spouse for a significant period of time prior to their death.

What is a Will? Almost all of us would answer that question by mentioning that it’s a written document setting out who receives our assets when we die.

However, recent court cases have taken a more expansive view as to what they are prepared to accept is a valid Will. The 2017 decision of the Supreme Court of Queensland (QSC) in Re Nichol; Nichol v Nichol & Anor [2017] QSC 220 held that an unsent SMS message was sufficient to constitute a Will.

A recent Supreme Court decision has highlighted the importance of accurately implementing estate planning for individuals with Self-Managed Superannuation Funds (SMSFs), together with preparing tailored Powers of Attorney.