Personal possessions – interpreting their meaning and entitlements

personal possessions, deceased estate, will making, Personal possessions, personal items, belongings or effects and similar expressions are often used by willmakers to leave instructions on what they want done with such things.

The executor’s role is to administer the estate of a deceased person in accordance with the terms of their will.  The case law shows that occasionally a term causes uncertainty for an executor as to what the willmaker intended in their choice of words or expressions.  What did they mean? What did they want to have happen, and how may their executor or personal representative resolve this dilemma with confidence that they are doing the right thing?

Executors seeking advice

If faced with a difficult dilemma as to what to do, executors can apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of trust property, under s 63 of the Trustee Act 1925 (NSW).

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A family tree can be useful, with or without a will

Why do a family tree?

family tree, wills, inheritance, intestate, intestacy,

A family tree is a record of information about family relationships. It is useful to have a basic outline of close family/next of kin relationships to keep with your personal papers.  This maybe unnecessary you might think.

However a family tree can be helpful in preparing to make a will, especially where large, complex estates, blended families and business succession issues are involved.  More

Enduring power of attorney – some considerations

By B Stead

An enduring authority

Legislation in each state and territory provides for a person to make ‘enduring’ arrangements, set out in a formal legal document, (callled an enduring power of attorney), where they name someone else to make certain decisions on their behalf, in the event they become incapacitated and unable to continue managing their affairs.

An enduring power of attorney is a powerful document 

In considering the making of an enduring power of attorney in the personal and family context, a Judge of the New South Wales Supreme Court said the following:

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Who can make a will?

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By B Stead

Who can make a will to dispose of their property?

Those who can make a will, change or cancel (revoke) a will under state and territory legislation must:

  • be an adult, (18 years and over); and
  • have the required mental capacity in regard to their testamentary intentions, meaning:
    • know (generally) what they own;
    • who they want to give it to, any dependents to be provided for;
    • be able to weigh up the consequences of their choices, potential claims;
    • understand that what they are doing is disposing of their property on death and its effects;
    • understand that on signing their will document, what it states will become enforceable when they die.

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Co-ownership & tenancy: jointly owned or in common?

By: B Stead

Co-ownership, joint tenancy, tenants in commonMany people own property with another person in a co-ownership arrangement.  Spouses or partners typically own their residence together in joint names, family members; or  friends may own a property together for investment.

An important issue to consider upfront when buying property are the consequences of when a co-owner dies. How the property is owned between people, that is, its tenancy, can give very different outcomes on death.  Ideally these should be considered at the time of purchase.

Questions to ask include who can take a co-owner’s interest when they die?  Would this be what they want to have happen?  If not, can they state their intention in their will? Or is the property owned in a way that on death the interest automatically passes to the survivor/s outside of a will, as in joint tenancy?  This article looks at tenancy issues.  More