Tag: Wills

Estate planning is shifting to meet today’s more complex family dynamics. Over the past 15 to 20 years, we have seen a steady rise in the use of testamentary trusts in Wills. These structures offer flexibility and protection, especially for testators navigating blended families, supporting children with addictions or mental health challenges, or planning for loved ones with disabilities.

On 1 July 2025, the Victorian Government introduced the Aged Care Restrictive Practices Substitute Decision‑Maker Act 2024 (Vic) to allow a person to nominate another person to make decisions around restrictive practices in aged care through a new enduring document.

Administering a deceased estate can be a complex and time-consuming process, particularly when the deceased held substantial assets or had outstanding liabilities. The complexity increases significantly when assets are located across multiple jurisdictions.

In cases where an individual who owns property in Australia passes away while residing overseas, the executor may face unforeseen Australian tax consequences, especially when selling that property as part of the estate administration.

Case note: Sorati & Anor v Sorati [2025] QSC 14

Preparing a Will can seem like one of life’s administrative burdens. For many, the easiest and cheapest solution to deal with that burden is to download an ‘off the shelf’ Will template or a Will Kit you can purchase at the post office or newsagency.

This might seem like a cheap and effective outcome now, but beware of the risks as it could significantly increase legal and other costs for your Estate, or be the cause of disputes between family members, resulting in an irretrievable relationship breakdown.

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

Case note: Damou v Damou & Anor [2025] VSC 14

A common problem faced by executors and administrators of deceased estates is how to deal with people continuing to occupy a property owned by a deceased person. Often, the occupier of the property is a child or relative of the deceased who has been given informal permission to stay in the property by the deceased, instead of through a formal lease with rent being paid.

A recent decision of the Supreme Court of Victoria (Court) in Damou v Damou & Anor [2025] VSC 14 (Damou) highlights the issues that executors and administrators ought to consider before commencing proceedings seeking the removal of occupiers in those circumstances.

Case note: Re Estate of Hagendorfer (Injunction) [2024] VSC 482

The Supreme Court of Victoria’s decision in Re Estate of Hagendorfer (Injunction) [2024] VSC 482 (Hagendorfer) highlights the importance for executors and administrators to exercise caution before distributing an estate, having granted an injunction which effectively froze funds distributed early, pending the determination of a claim against the estate.

For most of us, a new year brings new beginnings and opportunities. With the holiday season now behind us, this is the perfect time to create or update your estate planning including your Will before you get caught up in the daily routine of another year.

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.

In 2021, according to the Australian Bureau of Statistics, it was estimated that 8,747,135 people were married in Australia and 2,168,351 people were in a domestic relationship¹. Whilst a domestic relationship is not legally a marriage, the parties of a domestic relationship can register their relationship and receive benefits similar to those of a married couple.

Case note: Nguyen v Australian Financial Complaints Authority (2024) FCAFC 77

The Federal Court’s recent Full Court decision in Nguyen v Australian Financial Complaints Authority (2024) FCAFC 77 (Nguyen v AFCA) should be a timely reminder to review and update your estate planning documents in the event of a de facto relationship coming to an end.

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.

A discretionary trust, more commonly known as a ‘Family Trust’ is a common investment vehicle used by families and family business owners around Australia to hold assets or to run their family business.

An Advance Care Directive (ACD) allows you to plan for your medical treatment when you do not have the capacity to consent to or refuse medical treatment.

In the first of our introductory series which looks into the world of Wills, Trusts and Estates, we speak to Rosa Bazzanella a Senior Associate at Rigby Cooke Lawyers about some of the questions she frequently encounters in her work.

Court of Appeal Superannuation Case

Managing your own self-managed superannuation fund (SMSF) brings with it estate planning issues. In addition to contemplating who will be entitled to receive your superannuation death benefit on your death you must also consider who will take control of your fund if you were to lose capacity or die.