As a matter of law an entitlement under a superannuation fund (for example, death benefits or life insurance) does not form part of a deceased estate.  However, superannuation trustees may exercise their discretion to pay a deceased’s superannuation death benefits to an estate. Recent Supreme Court decisions in WA have clarified in what circumstances and, perhaps more importantly, at what time an applicant in WA may apply personally for payment

Superannuation Death Benefits: Making a Claim  Superannuation is a system where money is placed in a fund to provide for a person’s retirement. What is a Death Payment and Who can make a Claim? A death payment can consist of the deceased member’s superannuation balance (less any charges and taxes) plus any death cover that they may have had. The Superannuation Industry Supervision Act 1993 (Cth) (SIS Act) provides that

CHANGING CIRCUMSTANCES – WILLS What happens if, under a Will, a Will maker “gifts” his or her “principal place of residence” at death to someone but then, before the Will maker dies, the Will maker moves into a nursing home and doesn’t change the Will to reflect the new living arrangements?  Does the gift still stand? These are the questions the Supreme Court had to consider, on appeal, in the

A RISE IN ELDER ABUSE: A SIGNIFICANT PROBLEM Recent statistics released by Advocare have revealed that there has been a rise in elder abuse.  In the past two months alone, Advocare has received more than 200 calls for help which is double the number of calls received in the same period last year.  Almost one third of those calls concerned financial elder abuse. Abuse by Adult Children: One Recent Example

DO YOU THINK YOU HAVE A CLAIM UNDER THE FAMILY PROVISION ACT? If you are considering challenging a Will, it is important to know that there is a time limitation for bringing a claim contained in the Family Provision Act 1972 (WA) (the Act). Under section 7(2)(a) of the Act, an application can be made within 6 months from the date on which the Supreme Court issues a Grant of

06

Mar 2018

Probate Caveats

A Grant of Probate represents confirmation from the Supreme Court that a Will of a deceased person is the last valid Will of that person.  A Probate caveat may prevent a Grant being issued.  A recent decision in the Supreme Court of Western Australia (Richardson v Devine ¹ (Richardson case)) has provided valuable guidance as to the procedures to follow in WA in respect of Probate caveats. A Probate caveat is a written

The recent decision upheld by the Western Australian Court of Appeal Blenkinsop v Herbert WASCA 87 (Blenkinsop) outlines the importance of understanding the terms of a discretionary trust deed. More significantly, the case focussed on the nature of the Guardian’s powers and the Court’s jurisdiction to remove the Guardian. 1.     What is a discretionary trust deed? A discretionary trust is a common vehicle for operating businesses as they offer

24

Apr 2017

STATUTORY WILLS

In Western Australia (WA), recent legislative developments in 2007, have permitted the Supreme Court of Western Australia to make statutory Wills. Under the Wills Act 1970 (WA) the Supreme Court can make a statutory Will for a person who lacks the capacity to make their own Will (an ‘incapable person’). Although WA has more “relaxed” laws in this area compared with other States and Territories, it is surprising there have

For Probate purposes, when is a missing person presumed to be dead? There is a misconception that, if a person has been missing for 7 years, then that person is presumed to be dead. But an automatic presumption of fact does not arise even if 7 years have passed without any sign of the person in question. In fact, it is possible for a person to be declared dead where