Wills & Estates

Making plans to provide for your family after you pass away and to manage your affairs as you age or if you are incapacitated, is a sensible way to protect your assets and loved ones. Our experienced lawyers can assist you in setting a clear pathway to your retirement and beyond, and minimise nasty disputes after your death. We provide tailored, strategic estate planning services, from the preparation of simple wills to complex trusts and business succession planning.

Preparing a Will

A will can perform a number of functions but primarily, it appoints an executor to oversee the administration of your estate, and directs how your assets should be distributed after your death. This might be a detailed list of individual items, but generally, a will simply divides the estate into percentages.

The family unit is not always so straightforward and there may be a myriad of considerations that an experienced lawyer can bring to the fore to help minimise potential issues. Involving a lawyer to prepare your will can also help structure and maximise your estate to achieve its full potential.

Testamentary Trusts

A testamentary discretionary trust in your will comes into effect when you die and can help protect any minor or vulnerable beneficiaries you leave behind. A trustee is appointed to manage the trust in accordance with the terms of the trust deed, enabling capital and income to be distributed to the beneficiaries flexibly, and as needed. Trusts can also be effective for managing tax, and you can discuss these potential benefits with your lawyer and accountant. As with all forms of estate planning, a testamentary trust is not right for everyone. Trusts must be properly managed and there are administration costs involved such as annual tax and auditing fees. We can help you decide whether a testamentary trust is right for your circumstances.

Business Succession Planning

A business succession plan stipulates who takes over a business when an owner leaves, whether by choice or circumstance. Business succession planning aims to reduce disruption to the business by providing a smooth transition of power. Succession plans might consider any existing buy/sell option agreement, shareholder agreement, and/or partnership agreement for the business. A buy/sell option agreement provides co-owners of a business with an option to sell or buy a respective share of the business if there is an ‘option event’. The agreement can provide clarity on issues that impact business succession, such as how shares are valued and transferred, eligible purchasers, and the inheritance rights of family members.

A shareholder agreement sets out the rights and responsibilities of each company shareholder in the event of a dispute or proposed sale of an interest in the company. Non-incorporated businesses may have a partnership agreement that contains similar provisions.

Financial implications must also be considered, for example, retirement income and business transfer expenses. Careful organisation can help minimise capital gains tax, stamp duty and income tax for the business owner, their family and business partners.

Estate Disputes and Contested Wills

Estate disputes are often emotionally charged and complex and seeking professional advice is important. Our experienced estate lawyers can provide guidance on the strengths and weaknesses of a case, gather relevant evidence, prepare legal documents, and advocate for you in court.

Validity of Wills

Some estate disputes involve challenges to the validity of a will itself, whether on the grounds of allegations of lack of testamentary capacity, undue influence, fraud, or improper execution. These disputes typically occur when a family member has concerns that the will does not reflect the true wishes of the deceased.

Family Provision Claims

In New South Wales, eligible individuals, such as spouses, children, and dependents may have a right to make a family provision claim if they believe they have not been adequately provided for by the deceased’s estate. Many claims are successful, particularly those where a deceased’s child has been left out of a will. A number of factors will influence the success of such a claim, including the size of the estate, the financial needs of the claimant, and the relationship that existed between the claimant and the deceased.

Resolving Estate Disputes

Negotiation and mediation are commonly used to resolve estate disputes and can provide a quicker and cheaper option than going to court. For instance, in the case of a family provision claim, negotiation is usually conducted between the lawyer for the claimant and the executor of the deceased estate or their legal representative. Often these negotiations result in a mutually satisfactory outcome with the parties entering into a deed of family arrangement limiting the amount of cost for both sides if a litigated dispute was to occur.

Mediation is slightly more formal as it involves the assistance of a neutral third-party mediator who facilitates discussions between the parties, helping them explore potential resolutions and reach a mutually acceptable agreement. This approach allows the parties to maintain control over the outcome and is generally more cost-effective and time-efficient than going to court.

Estate Litigation

While most estate disputes can be resolved through mediation or negotiation, some intractable disputes do ultimately require litigation. In New South Wales, the Supreme Court has jurisdiction over estate disputes. A party seeking to make a family provision claim may file proceedings in the Supreme Court’s Probate Division. The court will assess the evidence presented by both sides and make a determination based on the applicable laws and principles of equity.

If you need assistance, contact one of our lawyers at [email protected] or call 02 9221 1088 for expert legal advice.