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Tag: drafting a will

will drafting
13 Dec 2021

Binding Financial Agreements & Will Drafting Essentials You Really Should Know About

  • Law, Wills and Estates
  • James Noble
Binding Financial Agreements & Will drafting essentials Will drafting is an important skill to possess as a junior solicitor. Unfortunately, you don’t always get the opportunity to refine your drafting skills in university which makes the leap into real-life practise particularly daunting.  The key question here is; what components are necessary to appropriately prepare wills as a junior solicitor?  After all, a negligence claim down the line could carry dire consequences for you and your principal, especially at the outset of your career.  Making a formal will  It is...
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Contesting A Deceased Estate If you believe that a deceased friend or family member’s Will does not reflect their last wishes or are concerned with the circumstances and nature of an updated will, you may challenge the validity of the Will. This situation commonly arises where the deceased friend or family member may not have been in the right state of mind to understand what they were doing, or, if a fellow family member has manipulated the persons wishes. To challenge a will, you must have an interest in the deceased person’s estate. In other words, you may be someone who is referred to in the Will, or if the person dies without a valid will in place, someone referred to under the laws of intestacy such as a spouse or child of the deceased. Reasons to Challenge a Will The most common reasons to challenge a Will include: 1. Fraud 2. Lack of testamentary capacity of the deceased when creating the Will; 3. Manipulation, coercion or undue influence; and 4. Absence of knowledge of the contents of the Will. As Wills are usually made when the deceased person is elderly, the most prominent concern is whether the Will maker had mental capacity to understand the contents of the Will. In circumstances where the Will maker lacks this capacity, the Will may be set aside by the Court. Before an order is made, the Court will consider whether the persons had a severe mental illness (such as Alzheimer’s) or a brain disease (such as Dementia) at the time the Will was made. Another reason to challenge a Will is if the Will maker was not aware of the contents of the Will or where they were pressured by someone to leave a particular item (usually property or another valuable asset) to a particular person where they would not usually have done so. If the Court decides this has been the case, the deceased’s previous Will is used. If no previous Will exists, the laws of intestacy will apply. Although a deceased person may not have a “Will” at the time of their passing, if the person wrote a letter setting out their final wishes in an informal document with their signature, the Court has the power to declare that document valid. In certain circumstances, this informal document may even be declared valid despite an earlier formal Will.
2 May 2019

What’re the Reasons for Contesting a Deceased Estate

  • Collaboration, Divorce
  • James Noble
Contesting A Deceased Estate If you believe that a deceased friend or family member’s Will does not reflect their last wishes or are concerned with the circumstances and nature of an updated will, you may challenge the validity of the Will. This situation commonly arises where the deceased friend or family member may not have been in the right state of mind to understand what they were doing, or if a fellow family member has manipulated the person's wishes. To...
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testamentary capacity
4 Dec 2018

No Ill Will: What is Testamentary Capacity?

  • Brisbane Family Lawyer, Law
  • James Noble
For a will to be valid and binding in Australia, the testator (the person making the Will) must have testamentary capacity at the time the Will was created. Testamentary capacity occurs when the testator is of sound mind and must understand:  The nature and effect of the Will; What encompasses the estate; The claims others might have upon their estate. To provide a practical example any individual with advanced dementia, amnesia or severe mental disability will unlikely have the requisite...
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Drafting A Will
4 Sep 2018

How To Avoid Problems Drafting A Will

  • Law, Wills and Estates
  • James Noble
Problems while Drafting A Will? Your last Will and Testament are perhaps the most important document you will ever sign. As the nature of this document is so important, it is necessary to ensure drafting a will is done correctly so any assets collected over your lifetime are properly accounted for. Assets such as superannuation, life insurance, and shares of jointly held assets (such as the family home) do not automatically fall into your estate when you pass away. Furthermore,...
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