Category: Wills, Trusts & Estates

Rigby Cooke Lawyers is pleased to announce that Rachael Grabovic — Partner & Notary Public, Christian Teese — Partner and Ashwin Reddy — Associate from our Wills, Trusts & Estates team have been recognised in the Doyle’s Wills & Estates Guides for Victoria, 2024.

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.

On 20 June 2024, the Victorian Government announced the Department of Justice and Community Safety (the department) would lead a review of fees charged for services provided by the Victorian Probate Office within the Supreme Court.

As part of its review, the department sought community feedback in which Rigby Cooke Lawyers’ Wills, Trusts & Estates group provided a submission expressing its concerns on the proposed fee structures and increase in probate fees.

Rigby Cooke Lawyers is delighted to announce the promotion of eight lawyers across five practice areas.

We are pleased to share the news that five of our practice areas, including Corporate & Commercial, Customs & Trade, Planning & Environment, Property and Wills, Trusts & Estates, have been recognised by Best Lawyers in their inaugural edition of Best Law Firms™ – Australia.

We are delighted to share the news that Rigby Cooke Lawyers’ Rachael Grabovic TEP, Partner and Notary Public in our Wills, Trusts & Estates group, was successful in winning the STEP Australia Excellence Award for 2024.

We are delighted to introduce Thalia Livadaras, Senior Associate in our Wills, Trusts & Estates group.

Rigby Cooke Lawyers is delighted to share the news that Rachael Grabovic, Partner in our Wills, Trusts & Estates group, is a finalist in the Excellence Award category for the STEP Australia Excellence Awards 2024, which was announced earlier today.

We are pleased to announce that five of our esteemed partners have been recognised in the 17th edition of The Best Lawyers in Australia™.

Case note: Re Miglic [2024] VSC 20

On 8 February 2024, in the Trusts, Equity & Probate Division of the Supreme Court of Victoria, Justice Gorton handed down a decision which was largely dependent on proving the existence of a 30-year-old oral agreement affecting husband and wife wills.

Yesterday, the federal government introduced the Statutory Declarations Amendment Bill 2023 (the Bill) to make permanent the use of digital execution — electronic signatures and video-link witnessing — in place of the traditional ink and paper.

Rigby Cooke Lawyers is pleased to announce that Rachael Grabovic — Partner & Notary Public, Christian Teese — Special Counsel, Marcus Schivo — Associate, and our Wills, Trusts & Estates practice have been recognised in the Doyle’s Wills & Estates Guides for 2023.

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.

Rigby Cooke Lawyers is pleased to announce that six of our esteemed partners across six practice areas have been recognised in the 16th edition of The Best Lawyers in Australia™.

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:

Dealing with the loss of a loved one is enormously difficult. It is even more difficult when there is an issue regarding the potential decline in the cognitive function of that loved one.

An attorney appointed to manage the financial and legal affairs of a principal has legislative duties they must adhere to. When an attorney breaches these duties and causes financial loss to the estate of the principal, what actions can be taken?

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.

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.

Rigby Cooke Lawyers is pleased to announce that Partner Rachael Grabovic, Special Counsel Christian Teese and our Wills, Trusts & Estates team have again been recognised in the Doyle’s Wills & Estates Guides for 2022.

On 29 March 2022, the Treasurer handed down the Federal Budget for 2022-23.

Have you ever read something and thought, “I’m not sure what that means” or ‘is that really correct”? Welcome to our series of quickfire interviews that attempt to unravel those interesting words and phrases.

In this edition, we speak to Wills, Trusts & Estates Associate Marcus Schivo, who talks to us about the word he finds interesting, forfeiture.

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.

Who and how to appoint your attorneys.

Surrendering a life interest – beware the tax implications

A common method to ensure that a family member or spouse of a Willmaker will have the right to reside at a particular property for the rest of their lifetime is for the Willmaker to grant a ‘life interest’ to that individual.

During the COVID lockdown last year, the Victorian Government passed emergency legislation to deal with the execution of many legal documents, including Wills and Powers of Attorney. The legislation legalised the electronic signing and witnessing of such documents.

Rigby Cooke Lawyers is pleased to announce that our Wills, Trusts and Estates team have again been recognised for their exceptional work in Victoria.

The entitlement of half-siblings upon intestacy made clear again.

The case of Kennedy v Proctor [2021 VSC 521] concerns a dispute as to whether a horse known as ‘Ishker’ was loaned or gifted by Ms Kennedy to Ms Proctor. It was a decision appealed from the Magistrates’ Court to the Court of Appeal.

Have you ever read something and thought, “I’m not sure what that means” or “is that really correct”? Welcome to our series of quickfire interviews that attempt to unravel those interesting words and phrases.

In this edition, we speak to Wills, Trusts & Estates Partner Rachael Grabovic, who talks to us about the phrase, personal chattels.

If one of your loved ones appears to have reduced mental clarity and is planning to make significant decisions regarding changes to their Will, or is considering signing legal documents such as Enduring Powers of Attorney, how should you proceed?

If your family trust receives franked dividends or has tax losses, the trustee should consider the option of making a family trust election (FTE) in order to access certain tax concessions.

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

In Australia, we have what is known as ‘freedom of testation’. That is, a person is free to leave their assets to whomever they wish when they die.

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.

As we reflect on 2020, it highlights how unexpected life can be and how so much can be out of our control. Last year, due to bushfires in the early part of the year and COVID-19 we saw unprecedented financial, economic, and human loss across not only Australia but the world.

As we reflect on 2020, we will no doubt remember how unexpected life can be and how much is out of our control. However, there is one aspect of our lives we can control, and that is our estate planning. As we start 2021 with anticipation and possibly some trepidation, there is no better time than now to take control of your succession plan.

In the fourth of our Wills and Estates 101 series, we speak with Rigby Cooke Lawyers Wills and Estates Special Counsel, Christian Teese, to answer questions around your rights to challenge the validity of a Will.

In the third of our Wills and Estates 101 series we speak with Rigby Cooke Lawyers Wills, Trusts and Estates practice lead, Rachael Grabovic, to answer questions around Superannuation death benefits.

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.

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.

Recently we discussed how the COVID-19 pandemic has brought to the forefront the importance of having a Will and Powers of Attorney in place. It has also highlighted the challenges of arranging and executing these documents whilst in lockdown.

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.

The COVID-19 medical emergency highlights the importance of having a Will and Powers of Attorney in place. Now is the time to ensure you – and your loved ones – are protected by guaranteeing you have valid and effective medical and financial documents prepared.

Legislative measures are currently before Parliament, which will operate to deny foreign residents the ability to access the capital gains tax (CGT) main residence exemption upon the disposal of their Australian dwelling.

The sale of a person’s main residence (ie their home) is generally exempt from capital gains tax. This exemption is ‘carried through’ to beneficiaries or executors of deceased estates who seek to dispose of the deceased’s main residence, where certain conditions are satisfied.

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.

The freedom to make a Will and to leave your estate to whomever you choose (called testamentary freedom) is one of the most fundamental principles of succession law in Australia.

The new Oaths and Affirmations Act 2018 (Vic) (the Act) is set to come into operation on 1 March 2019. The Act updates the processes and requirements regarding oaths, affirmations, affidavits, statutory declarations and certification of documents.

So much of what we do in our lives is now carried out online, so it’s not very surprising that we’re now including access to our digital assets if not in our Wills, in letters of instruction to our executors. However, you may find that by including such instructions, you could actually be putting your executor at risk.

If you have recently purchased property in Australia, it is important that you protect your new asset. Most people immediately take out insurance to protect their new property from the consequences of flood, fire, damage and theft. Many people fail to protect their new asset from the consequences of incapacity or death.

The recent decision of the Supreme Court in Estate of Elzow [2018] VSC 498 highlights the importance of validly executing 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.

Fleur came into see one of our lawyers on behalf of her friend, Norma, who was distressed and unhappy with her accommodation arrangements at an Aged Care Facility and wanted out. This was not a situation where the resident had lost the ability to make decisions for herself, but rather it was a situation where an elderly woman with no family was being taken advantage of.

In an increasingly diversified world, traditional notions of the definition of a “step-child” are being modified.

In earlier times, a step-child was understood to mean the child of a spouse by a previous marriage.

The first question many clients ask when we raise the issue of digital assets is…‘What are they?’

Digital assets can be as basic as your Facebook page and as complicated as cryptocurrencies such as Bitcoin. In the middle, we have many different types of assets such as an online share portfolio, subscription to online newspapers, iTunes accounts or Kindle books.

On 12 March 2018, the existing legal framework for medical treatment decision-making, the Medical Treatment Planning and Decisions Act 2016, changed in an attempt to provide greater autonomy to potential patients by enabling them to give advance care directives that are legally enforceable.

Solicitors and other professionals who act as executors of deceased estates need to be aware of recent law changes which clarify when commissions can be charged for administering an estate.

An appeal to a claim involving a love child, a substantial estate and a diamond encrusted guitar, has reached its conclusion in a decision which sets a precedent for all estates to be treated the same regardless of their size.

Following a nation-wide postal survey and many months of debate, the passage of the same-sex marriage legislation came into effect on 9 December 2017. With many same-sex couples organising their weddings, it is essential to understand how marriage can affect your estate planning.

If you have been appointed as a financial attorney or administrator, whether by the individual or by VCAT, it is essential to understand what is involved in this role. A breach of your legal duties can result in suspension of the role or an order of compensation if brought forth by an interested party.

Rigby Cooke Lawyers’ Tax & Wealth and Wills & Estates teams have been recognised by independent survey and review source Doyle’s Guide for their expertise in their respective practice areas.

Should funeral and burial wishes be binding? This is the question the Law Reform Commission considered when they sought submissions from the public and professionals who work in this area.

Foreign purchaser additional duty and absentee owner surcharge land tax may apply to Australian discretionary trusts transacting in Victorian residential land where the discretionary trust has potential foreign beneficiaries.

From 1 January 2015, Part IV of the Administration and Probate Act 1958 was amended to change the class of individuals who could make a claim for further provision against a deceased estate.

If you had said the word ’philanthropy‘ 20 years ago, most people would have looked at you with a quizzical look. Today this word has become as common as the word ’footy’.

An area that is typically challenging in the Wills & Estates space is where a person residing overseas or interstate dies leaving assets in Victoria.

As a new financial year ticks over, financial and strategic planning is common practice for businesses, but one overlooked and yet highly important action to take is the review of your personal Will and estate planning.

The value of formalising business owners’ arrangements
Shareholders’ and unitholders’ agreements are increasingly being implemented for companies or trusts that involve two or more arms’ length parties. There are very good reasons for this trend: such agreements help to guide decision making, establish governance procedures and stipulate mechanisms to resolve deadlocks.

In some cases, homemade Wills can cost the deceased’s estate considerable expense. We share with you just how defective a homemade Will can be and how risky it is for appointed executors to try to obtain probate of a homemade Will without legal assistance.

For super fund members there were a plethora of changes in May’s Budget announcement. Most changes apply from 1 July 2017 apart from the lifetime cap on non-concessional contributions of $500,000, which applies from Budget night (3 May 2016) and counts non-concessional contributions from 1 July 2007.

I own property in Australia, what do I need to do to protect my interests?

If you have recently purchased property in Australia, then it is imperative that you protect your new asset. The first thing most people do is take out insurance to protect against fire, theft and damage but what most people forget to do is protect their assets against government intervention during times of incapacity or on death.