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Butlers News

All data and information provided on this site is for informational purposes only. The Butlers Blog makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site & will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.

Why young Australians also need a Will

Studies have shown that most Australians under the age of 50 do not have a current or valid Will. Many people believe that a Will is something only necessary in your advanced years. For most this line of thought is incorrect. Having a valid Will can be as important for young Australians as for their parents.

One of the main reasons why everyone requires a Will is our “Intestacy” laws. Essentially, if you don’t have a valid Will, under the Administration Act 1903 (WA) you’ll have no say in how or to whom your estate is distributed.

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FROM BUTLERS WITH LOVE ON DAFFODIL DAY

Daffodil Day falls on the last Friday of August every year. To all those affected by cancer, Daffodil Day represents hope for a future free from cancer. Daffodil Day is a chance for Australians to come together to change the lives of people impacted by cancer by funding research towards its prevention. In 2020, the Daffodil Day Appeal raised almost $1.5 million for life-saving research that aims to assist the 150,000 Australians diagnosed with cancer every year and the many more currently afflicted by this disease.

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But That Was Not Their Wish! – Left Out In The Cold

A recent and riveting development has just unfolded in the lives of some of the cast of Netflix’s popular docuseries, ‘Tiger King’.   It has been discovered (and confirmed by two separate forensic experts) that the Will of Carol Baskin’s late husband, Don Lewis, was a complete forgery.

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Last Minute Wills – When Time Is Of The Essence

I was recently reminded of the importance of having a valid and up to date Will.

A colleague and I received instructions from the son of one of our clients, who had terminal cancer. The matter was urgent as his father did not have a Will and his Estate would have had to be distributed between him and his mother (pursuant to the laws of intestacy).  

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Have you migrated to the land Down Under? Does that mean you need a new Will?

I migrated from South Africa to Australia and have been in Perth for a little over a year.  I am therefore aware of the stress and planning of migration and I also know that certain things do not make the priority list.  One being, finding out if the Will that you made elsewhere is enforceable in Western Australia, or if you need a new Will.

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The Future of Electronic Signatures on Wills in WA

You may have read some of our other recent blogs about how to sign your Will during COVID-19, when to review your Will, and the importance of having a valid Enduring Power of Attorney and Enduring Power of Guardianship.

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Oops I Did It Again... When do I review my Will?

I recently received a notification that I have used 75% of my iCloud storage.  After a bit of digging I found several, dare I say “never seen before” videos, photos, and memes.  Of course, a lot of them were Covid-19 related and were instantly deleted.  Jokes about gaining weight during lockdown were obviously also very popular.  

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Why "Young" people Should Have a Will

When asking younger people if they have a Will, I often hear the cliché response of “I don’t have anything to give” – wrong!

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Does an Executor Get Paid?

There is no requirement to pay an Executor a commission for acting in that role.  In a lot of cases, you may find that the person appointed as the Executor of an Estate is also a beneficiary of the Estate, and that they do not have the professional skills required for the tasks involved in administering an Estate.

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Family Money- Can I Protect It?

Bank of Mum and Dad

In today’s economy, it is has become increasingly common for parents to financially help their children, especially when it comes to buying their first home.

Parents may loan the money, gift the money, or act as guarantor. While most parents want to help their children as much as possible, this can raise a variety of issues.

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Protecting your present while securing your future

Canadian entrepreneur Gerald Cotton died in December 2018. With him died the ability to access $145 million worth of bitcoin. Cotton’s widow, Jennifer Robertson, says in her affidavit "I do not know the password or recovery key. Despite repeated and diligent searches, I have not been able to find them written down anywhere”. While $145 million may be slightly more than the average asset misplaced when administering an estate, it is not uncommon for executors to struggle to find information regarding a deceased’s assets. Especially for those who take security seriously.
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R U OK?

As a firm specialising in family law and wills and estate matters, we see the impact that separation, death and family disputes have on people of all walks of life, every day. There is a known link between serious life events such as these, having a substantial impact on personal wellbeing, often for prolonged periods of time.

These issues permeate our society and today, we would like to remind our clients and our wider network that it is okay to talk, and there are always avenues and people who are willing and able to help you.

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Privacy and my Lawyer.... how far does that go?

It's true that any communication between you and your lawyer is confidential.  It cannot be divulged, discussed or provided to other people or the Courts. This concept is known as Legal Professional Privilege or for the sake of this blog, LPP.  It's the backbone of the honest relationship a lawyer and their client must have at all times.  But did you know LPP can be waived or lost? Did you know that your former-wife, husband or partner may be able to access the entirety of your Family Law file once you die? Here’s how and, more importantly, how to prevent it.

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Avoid legal limbo - create a valid will

Avoid legal limbo - create a valid will

The Public Trustee has revealed that 50 per cent of Western Australians over 40 do not have a valid will. With litigation regarding wills increasing in Australia, it’s become more important than ever to create a valid will using a suitably qualified, experienced solicitor.

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iPhone 10 yes please....get your priorities right!

In a recent Supreme Court Decision, Kenneth Martin J made the remark that society as a whole simply do not appreciate the importance of having a valid, up to date Will.
He stated that:
“Wider public educational efforts should be made to advance the general state of knowledge of the community on these matters, in my respectful view. This is an age where people outlay significant amounts on a regular basis to update their phones - so they are equipped with the latest technology. But a small outlay to correctly execute a will to secure potential benefits for loved ones and dependants should be an elevated priority. A person's last will is perhaps the most important document that they will ever sign in their lifetime. The long-term worth of leaving a valid will always exceeds the cost of a new electronic device.”

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Butlers awarded Doyle's Guide 2016

Doyle’s Guide is considered a prestigious recognition in the Legal Industry as an independent guide to the legal profession in Australia that awards the best lawyers, barristers and law firms in the industry.  Within each area of law, and for each State, rankings are allocated, identifying pre-eminent, leading and recommended practitioners.  Further, the guide recognises law firms specialising in specific areas of law.  What makes the guide special is the process by which these rankings are decided.   Feedback is gained by counsel and peers practising in Australia, who identify firms and individuals through surveys, telephone and face to face interviews.

Butlers are proud to be recognised in Doyle's Guide for Leading Family & Divorce Law Firms – Western Australia, 2016 and John Butler, personally in Leading Family & Divorce Lawyers – Western Australia, 2016. 

We look forward to continuing to offer our Clients exceptional service in all areas of Family Law and Wills & Estate Planning in Western Australia.

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The real cost of DIY Wills

There are some things in life that are just so much better when they’re homemade. Like Mum’s secret recipe sponge cake with fresh strawberries. A hand knitted beanie. Or even a handmade birthday card from your 5 year old niece. But then there are some things that are just better left to the professionals.

Why is it that we’re more willing to let the experts take the reins on some things than others? I wouldn’t try to replace the chipped windscreen in my car, because I don’t have the tools or the skills to do it right – and if I don’t get it right the risk is that I will hurt myself (or even worse, someone else) and end up costing myself a lot more money than I would have forked out if I’d just left the job to the right people in the first place.

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To describe or not to describe?

Whilst the plaintiff questioned whether the gift to Katherine was dependant or conditional on her being the de facto of the deceased at the date of his death, one of the defendants argued that the phrase, “my de facto wife” was merely descriptive and should be ignored.

The Court held that the Will is said to speak from the date of death. The Court reasoned that because Katherine was no longer in a de facto relationship with the deceased at the date of death, the intended disposition of his estate to Katherine should fail.

So, what do we, as practitioners, consider when drafting Wills for our clients? Are we doing our clients a disservice by describing the relationship of a beneficiary to the client without more? For instance, if a bequest is made to a friend,Joe Blow, of the client, and at the time of death, Joe Blow is no longer a friend of the client, then would the gift to the estranged friend fail? Was it the client’s intent that Joe Blow remained his friend in order to receive the gift? And more importantly, how could one prove that the relationship was no longer amicable?

I suppose if the description of a relationship to the client is just that…a description, then a bequest should remain valid. On the other hand, if it is the intention of the client to only benefit a particular person if he/she remains in the relationship described, then probably the best practice is to clearly state such an intention in the Will as a condition precedent to receiving the gift.

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Choosing the Right Executor?

There is no single right or wrong, one-size-fits-all recommendation for everyone, but there are some useful questions you can ask yourself when thinking about who would be the right Executor for your Estate. Some of these questions are:

  1. Whom do I trust?
  2. Who would be equipped to make sensible, rational and fair decisions after my death?
  3. Who would be willing and able to take on the job, and could stand up to any pressure from my beneficiaries?
  4. Where does this person live, and how difficult would it be for them to act in the role?
  5. How old is this person, and are they likely to survive me or to be fit enough to do whatever is required?
  6. Has this person ever been bankrupt, or do they have a criminal background?
  7. Does this person have a parent or spouse (or anyone else in their life) who could influence them to make decisions in a certain way in the course of administering my Estate?
  8. How “messy” or complicated is the administration of my Estate likely to be?
  9. Should I appoint more than one person? If I do this, what do I want to happen if these people don’t get along, or can’t agree on something?
  10. Should I nominate a professional person or trustee company, knowing that this might come at a cost to my Estate, and might be disempowering for the loved ones I leave behind?
  11. Should I nominate a substitute Executor in the event that my first choice is unable or unwilling to act as my Executor?

If you anticipate that there is the potential for a claim against your Estate by a disgruntled beneficiary, you might not want to nominate that particular person (or any other beneficiary named in your Will) as your Executor. For example, if you want to leave your entire Estate to charity, rather than to your children, you might think twice about appointing your child as your Executor.

Every person (and every Estate) is different, so of course this cannot be an exhaustive list of things to think about when choosing your Executor. We encourage you to turn your mind to what is important to you, and what you wish for your loved ones after you’re gone.

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Life after Death?

But it was established to the satisfaction of the Court that the 2009 Will had been signed at a time when the testator had already lost testamentary capacity due to certain delusional beliefs which she held. Accordingly, the Court decided the 2009 Will had no effect. That meant that the revocation of the 2006 Will was also ineffective. So the 2006 Will was rescued from its dusty grave, and was duly admitted to Probate. The case also demonstrates that in deciding which Will is valid, the Court makes up its own mind based on the evidence before it and does not simply follow any agreement reached by the parties.

In Williams v Schwarzback the question of which Will was valid was initially hotly contested; at a mediation the parties agreed that the 2006 was the valid Will. But the Court only decided in favour of the 2006 Will when it was satisfied that the 2009 Will was invalid. It did not simply rubber stamp the agreement of the parties, who had to put the necessary evidence of the testator’s delusions before the Court. This is an illustration of the rule that in contested Probate disputes one cannot simply get judgment by consent, even if the parties ultimately settle their differences.

Finally, it is good practice for testators, when they sign a Will, to write ‘revoked by Will dated….’ across the earlier Will; this practice helps to minimise confusion as to the status of the earlier Will. If the later Will is found to be invalid, the revocation is also invalid and the earlier Will is available to be admitted to Probate. The earlier Will may also be relevant if Family Provision proceedings are brought, even if the later Will is valid. So, as you can appreciate, at least in Probate matters, there can be life after death.

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