The OHL Wire ISSUE 15: Blended Families and Estate Planning

October 2015

ISSUE

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15

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BLENDED FAMILIES AND ESTATE PLANNING

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CAN AN UNSIGNED WILL BE VALID

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CHILD CUSTODY OVER THE CHRISTMAS HOLIDAYS

LEGAL - WEALTH PROTECTION - INVESTMENT - BUSINESS - LIFESTYLE - SYDNEY

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LOST WILL: WHAT TO DO WHEN THE ORIGINAL WILL CAN’T BE FOUND

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FAMILY PROVISION CLAIMS BY ADULT CHILDREN: SHAKESPEARE V FLYNN

Blended Families & Estate Planning

Blended families, made up of new partners or spouses with the children from prior relationships, are amongst the fastest growing types of families in Australia, increasing by 50 percent during the past decade.

Mythologized as a happy pile of hers, mine and ours, these families, like all others, actually take some thoughtful care, especially when it comes to estate planning.

Let’s find out.

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OWEN HODGE LAWYERS

Families always have been complicated but, in some ways, the law is just now catching up with the extended web of relationships we now recognize as “family.” The problems are different when dealing with step-children, de facto partners, children of de facto partners, former spouses and perhaps even the new spouses of former partners.

What could possibly go wrong?

Imagine that Bob and Carol divorce. Bob, being a good sort, wants to provide for his three children with Carol after his death. Bob remarries and he and his wife, Alice, have a child of their own. Alice also has two children from her previous de facto relationship with Cedric, who has since died.

Bob then dies and Alice, as his spouse, inherits.

Eventually, Alice remarries and her new husband, Ted, also has a child from a previous marriage.

Alice dies, leaving Ted to inherit. What happens to Bob’s three children with Carol? Alternatively, imagine Bob and Alice were actively involved in raising Alice’s children with Cedric as well as their own child. When Bob dies, might Alice and Cedric’s children have a claim on Bob’s estate that affects Bob and Carol’s children?

Might Ted, who is unable to work because of the demands of caring for Alice and Cedric’s disabled child, have a claim on Bob’s estate that trumps the claims of Bob’s financially independent adult children? It makes the head spin. The answer is everything can go wrong and everything that can go wrong will go wrong, absent an estate plan.

of the deceased person’s estate passing to biological children of an earlier relationship; Joint tenancy in the family home with a surviving spouse, with the remainder of the estate passing to children; Creation of a tenancy in common, under which title to an asset, like the family home, would pass to children rather than the spouse; Creation of a lifetime, or inter vivos, trust, to be funded during the lifetime of a parent, but payable on his or her death; The establishment of a trust within the will and the appointment of an impartial trustee to oversee the distribution of assets; Naming adult children as executors, trustees and attorneys alongside a spouse to resolve concerns about control of assets; The execution of a Binding Financial Agree ment that provides as desired for biological and step-children; Mirror wills that leave the estate to a surviving spouse, to be divided among all children on the death of the survivor; or A mutual will agreement that will contractually bind the surviving spouse to honor the provisions of a mutual will with respect to children from a prior relationship.

A variety of solutions

Not a DIY project

Fortunately, there are a number of ways to prevent chaos. The variety of potential solutions can provide almost every blended family with a well-designed plan, customized to circumstances. The most basic tool, of course, is an up-to-date will. Among the additional options are:

Crafting a solution that meets the estate needs of a blended family clearly is not a do-it-yourself project.

The task of the brave soul looking to take care of the needs of an extended family that may include a spouse, partner, previous partners, children and the children of prior relationships is simply to recognize the need for a plan and to identify the desired outcome.

A direct gift to children from a prior relation ship funded through life insurance, which will not pass through a deceased person’s estate; A life estate in the family residence provided to the surviving spouse, with the remainder

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It is the job of an estate lawyer, working with the range of tools available, to come up with a plan that will accomplish the desired result. The lawyers at Owen Hodge Lawyers are experts in estate planning and are especially aware of the more complex needs of blended families. Contact us NOW! among distant relatives, the parents’ wills kept their three

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Can an Unsigned Will Be Valid?

Everything You Need to Know Creating a will is something everyone should do to protect assets and leave money and property to desired heirs. When creating a will, legal formalities should be followed.

The person making the will, who is called the testator, needs to sign the will in the presence of two witnesses. The witnesses should not be beneficiaries who stand to inherit under the will, and they should sign their own names on the document at the same time as the testator.

Find out more.

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OWEN HODGE LAWYERS

If a testator does not sign the will, this does not mean his or her wishes will not be followed - it can just make it more complicated to determine if the will is legally valid.

and left only 55 percent of his estate residue to his wife, the new will would give the wife a 27 percent interest in his house and a 100 percent interest in the residue.

When Can an Unsigned Will be Valid?

The wife was a solicitor and drafted the new will for the deceased in early October of 2009. The deceased said to his wife, “I have read the new will -- that's what we want -- that's it.” His wife commented they would need to have the new wills signed and the deceased agreed. However, he died shortly after the new wills were created, without formally signing and executing the will.

The Wills, Probate and Administration Act 1898 (WPA Act) addresses documents that can constitute wills in Section 18A. According to this section of the Act, a document “purporting to embody the testamentary intentions of a deceased person” can constitute the deceased person's will EVEN IF the document does not meet the formal requirements for creating a will as set forth in the Wills, Probate and Administration Act. The document purporting to be a will can be considered a legally valid will only if: “the court is satisfied that the deceased person intended the document” to serve as a will.

The court can consider not only the document, but also other evidence relating to the way in which the document was prepared and the testamentary intentions of the person who passed away. This includes statements made by the deceased individual, as well as any other relevant information.

Documents intended to embody testamentary intentions of the deceased can not only serve as a legally valid will, but also can serve as a revocation or amendment of another existing will. This is true even if the original will is signed and meets all criteria of the Act and the new documents do not meet these criteria.

Based on the plain language of the Wills, Probate and Administration Act, the question of whether an unsigned will can be considered legally valid is going to hinge upon what the deceased intended.

Courts in Australia generally have required proof that the deceased intended the document was both clearly approved and was intended to have present operation as a will.

In Bell v. Crewes, for example, the deceased and his wife both agreed to make new wills, mirroring their requirements. While the deceased previously had left a nine percent interest in his house to his wife

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The Court determined the words of the deceased did not show he intended for the new will to become operative right away as the words were spoken. Even though the Court did believe the document accurately expressed the deceased's testamentary intentions, the will was not considered legally valid and was not admitted to probate.

The reasoning was, both the deceased and his wife knew the wills had to be signed, and the evidence showed the deceased did not intend the new document to operate as his will until after both he and his wife signed the mirror wills. Since this did not happen, the deceased did not intend the documents to currently, presently, serve as his will--and thus his old will still was the appropriate document to probate.

In light of Bell v. Crewes, it is clear beneficiaries need to make sure they can show the deceased intended an unsigned will to be legally valid right away to establish how money and property are to be distributed after death. The reason is it can be challenging for beneficiaries to provide sufficient evidence of a deceased person's intentions, so the testamentary intentions outlined in an unsigned will may not be respected. For those who want to ensure they are creating a valid document dictating their wishes, signing is an essential step.

To ensure you create a legally valid will and that your wishes are respected when you pass away, get help with your estate planning from OHL Lawyers. We represent clients who are creating a will, as well as beneficiaries and heirs who need help with the probate process.

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Child Custody Over the Christmas Holidays

Although your family lawyer probably always is happy to see you, no one has happy memories of spending Christmas in a family law dispute. Let us suppose you are newly divorced or separated and facing your first Christmas with a new parenting arrangement. It’s a delicate time, especially for your children.

Find out more.

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OWEN HODGE LAWYERS

Here are five practical tips for making it through the holidays, particularly the first time.

arrived a little earlier. It gives you chance to be fun and creative.

1. Settle plans well in advance and get them in

6. If you are not going to be spending Christmas

writing.

Sometimes, Parenting Orders are quite explicit and, sometimes, arrangements are more informal.

Especially for informal arrangements, you should try reaching an agreement several months prior to the Christmas period. It often involves extended family celebrations, so negotiating early will ensure everyone involved has a chance to adjust their schedules.

2. Try to agree on a predictable framework for time

spent with children, something that will not have to be re-negotiated every year.

Where parents live close to each other, many settle on Christmas Eve and Christmas morning with one parent and Christmas afternoon and Boxing Day with the other.

3. Where parents live farther away from one another, one common arrangement involves allocating half of the Christmas holidays to each parent, alternating each year between the first and the second half.

Keep track of even and odd, and remember that older children will begin wanting considerable say in these arrangements.

4. Embrace the notion that Christmas is not an

all-or-nothing event that occurs on 25 December.

The Twelve days of Christmas, Boxing Day, New Year’s Eve and New Year’s Day, Three Kings’ Day, or even Advent and Epiphany on the religious calendar, could have been invented for divorced, separated, blended and all other kinds of complicated families.

5. Accept the fact your holiday traditions are going to change.

They would have anyway as you, the children, and perhaps their grandparents, get older. Change just

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with your children for the first time, find something to do that will keep you very busy for the entire day.

Preferably it should be with other people, and be something that will leave you far too exhausted at the end of the day to do anything but fall asleep - a marathon would be perfect.

International Travel If either you or your former spouse’s holiday plans involve international travel, remember it will require the consent of the other parent. In extreme cases, government authorities can prevent a child from leaving the country at the airport.

What to Do if Things Go Wrong Let us suppose your behaviour has been exemplary in every way but your former spouse has not complied with the terms of the Parenting Order or has disregarded the details of an informal agreement.

Rule Number One is “Thou shalt not express anger or frustration to the children.” Your adult thoughts are to be expressed to other adults only.

Rule Number Two is that it probably is pointless to pick a fight with your former spouse. It is a given you don’t really get along.

Rely on your solicitor’s advice about whether it is necessary to return to the Family Court to enforce the terms of a Parenting Order. If your former spouse is a chronic disregarder of informal arrangements, it may be best to seek a Parenting Order.

If you have any reasonable fears your former spouse is intent on violating custody agreements, discuss this possibility with your solicitor well in advance, so you will be prepared to be proactive in prevention.

If you have questions about child custody arrangements during the upcoming Christmas holidays, the family lawyers at Owen Hodge Lawyers are here to help. Contact us NOW!

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LOST WILL What To Do When the Original Will Can’t Be Found

1. “Buyer beware” applies in real estate sales deals.

What should you do when you believe someone who has died had a will, perhaps you even have an executed photocopy, but the original simply can’t be found?

the mattress, in drawers, in the attic and in the rafters. to no avail, you still may be able to persuade a court to dispense with the requirement of an original will under some general rules developed by courts over time. Many of these are embodied in Section 8 of the Succession Act 2006.

When a Court Will Dispense with the Requirement of an Original Document For a court to recognise a missing, lost or misplaced original will and admit it to probate, the court must be very certain of a number of issues. Among these are: that the original will actually existed; that it was validly executed; or, if the legal formalities have not been met, that it may be admitted to probate as an informal will; what its terms were; where a copy exists, the copy is an accurate and complete copy of the original will; PAGE 8

that thorough searches have been conducted advertisements in the newspapers; that the original will revoked all pre-existing wills and why the original will is missing; is granted, know about it and have consented to the application and all have legal capacity; that there is no reason to believe the original will might have been destroyed in order to revoke it.

Where there is strong evidence a valid will exists, even though the original cannot be found, an estate need not necessarily be distributed according to the rules of intestacy. However, the evidence presented to the court concerning the will must be very compelling. it is a situation that should be avoided wherever possible. As our loved ones age, it is best to have a frank conversation about the location of a will and other important documents so this situation does not arise.

OWEN HODGE LAWYERS

Family Provision Claims By Adult Children:

Shakespeare v Flynn

The case (Shakespeare v

Flynn [2014] NSWSC 605) concerned the estate of original Sherbet guitarist Clive Richard Shakespeare.

The impact of estrangement on family provision claims was exhibited in Keep v Burke [2010] NSWCA 64, in which the Court of Appeal examined the nature of the estrangement and the reasons underpinning the estrangement between the respondent and the deceased.

The breakdown of the relationship between Marion Burke (“the respondent”) and Joyce Keep (“the deceased”) occurred in 1971 when the respondent became engaged at the age of 20 against her parents’ wishes. The wedding invitation sent to the deceased was returned to the respondent with a note to the effect that she wished to have nothing more to do with her.

Between 1971 and 2009 the respondent saw the deceased on five occasions. The deceased made her last will on 7 July 1997 and left no provision in the will for the respondent. The deceased died on 29 August 2009.

At first instance the primary judge considered the nature of the estrangement and held that Marion had been left without adequate provision for her maintenance and advancement in life. Accordingly, Marion was awarded a legacy of $200,000 out of the estate of the deceased.

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On appeal, the Court examined the length of the estrangement and the roles played by both parties.

The Court found that Marion and the deceased both had contributed to the estrangement. However, the Court held Marion was not faultless in the matter of the estrangement and her conduct was such that the provision made for Marion in the sum of $200,000 was reduced to $175,000 accordingly.

This case demonstrates that estrangement is a factor the Court will take into consideration when making an order for provision.

Get the Help from Us Before you make your will you should discuss with a lawyer the possibility of a claim being made against your estate. This will arise in cases such as second marriage, children being omitted from your will etc.

Your will can be drafted to minimise the possibility of a claim.

You can keep notes with your will to explain the reasons why you have made your will in that way. For further advice and assistance in relation to a Family Provision claim please contact us on 1800 770 780.

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Christmas Party

Top Tips for the Perfect

Christmas Party Merry Chris as tm

The Christmas season is fast approaching and now is the time to begin planning your festive events. These tips for a successful Christmas party will help ensure your event goes off without a hitch:

Get the whole gang involved Preparing for a holiday party can be half the fun for your family members--and it means less work for you.

Get your spouse to help with the décor, your kids to help with making cookies, and your extended family members to assist with tree decorations. You'll not only have the memories of the party but also of the fun preparation. Be sure to serve some cocoa to reward your loved ones for their help doing fun pre-party projects.

Get creative with the decorations You don't have to stick with the Christmas classics - you can incorporate a little bit of your own personality and style into the décor you select. This is especially true with table décor. Just be sure to keep any floral arrangements or centerpieces low on the table so your guests still can make eye contact with each other PAGE 10

during dinner.

Serve something for everyone Plan your menu carefully so picky eaters and people with special diets will not be starving when they leave your event. Serving Christmas classics such as non-alcoholic mulled cider also ensures that even people who don't imbibe will have a good time.

Don't forget the entertainment Perhaps your guests would like to play games or your friend plays music and can come over and get everyone singing carols. Having something fun for your guests to do at your party means it will be easy for everyone to mingle, get to know each other and have a good time with no dull moments.

The perfect party is just a part of having a wonderful holiday. We wish you and yours a season full of happy, safe and fun events so you can create many new holiday memories!

OWEN HODGE LAWYERS

What’s On In Sydney Sydney Open - Sydney

Melbourne Cup Race Day Meeting

20:21 - Sydney Harbour

1 November Corner Bridge and Phillip Streets, Sydney (02) 8239 2211

3 November Alison Road, Randwick NSW 2031 info@australianturfclub.com.au

5 November 2015 till 21 November Bennelong Point, Sydney Harbour NSW (02) 9250 7777

Australia's premier open building event, Sydney Open, returns for its 11th year, providing the public with the rare opportunity to experience some of the city's most exciting architecture and heritage.

Royal Randwick is the only place to be this 2015 Melbourne Cup. Set to sell out, this Cup Day live site is a favourite for Sydney's social-set and corporate groups, enjoying live entertainment and a vibrant atmosphere at the track.

George Balanchine's powerful Symphony in Three Movements opens 20.21 with an energetic ensemble of dancers blending angular movement with the vigour of jazz - all paced against Igor Stravinsky's clean and crisp score.

For An Adventurous Spirit

NSW Open Golf Championship

7 November Corner Macquarie and O'Connell Streets Parramatta NSW 2150

7 November UWS Parramatta, Rydalmere NSW 2116 info@whitlam.org

12 November to 15 November Stonecutters Ridge Golf Club Quakers Hill NSW 2763

Sydney Scale Model Show is a scale modelling event in Parramatta, where people can enter or just view scale models. Plenty of categories and prizes on offer.

Curator Stephen Thompson will open a window to Victorian Sydney in this visual workshop introducing the world of the people who transformed the bush, farms and cow pastures of Parramatta and Surry Hills, Newtown into roads, streets, lanes, terraces, railways and great urban parks that most of us navigate every day.

The 2015 New South Wales Open will be played at Stonecutters Ridge Golf Club in Sydney, NSW.

Sydney Scale Model Show 2015

Fisher's Ghost Carnival

Vintage Bride Wedding Fair Sydney

Wild Ones Art and Design Market

13 November to 15 November The Parkway, Campbelltown NSW 2560 (02) 4645 4921

15 November 16 N Fort Road, Manly NSW 2095 (07) 3846 6887

15 November 782 The Kingsway, Gymea NSW 2227 hazelhurst@ssc.nsw.gov.au

Enjoy the rides, sideshows, entertainment and more at Bradbury Oval during the Campbelltown City Festival of Fisher's Ghost, including a spectacular fireworks show on the seventh and fourth of Nov at 9pm.

Enjoy a day of being inspired by Sydney's most awesome vendors with a focus on vintage and eclectic weddings. Over 30 creative wedding vendors will be showcasing their work at Milestone Events for one day only.

The Wild Ones Market is held four times a year and is situated throughout Hazelhurst's sprawling gardens and state-of-the-art studio spaces. Continually growing since its inception in 2012, Wild Ones attracts over 2,000 visitors throughout the day.

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