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Where theres a Will … Foyles Law

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					OWNER//DRIVER                                                                 www.ownerdriver.com.au                                                             January 2009 —   45




Where there’s a Will …                                                                                                                    Foyle’s Law


With the arrival of the New Year, it’s time to consider updating or making a Will,
otherwise the government will decide where your money goes. Brendon Foyle writes

The following is for                      mental or physical impairment                        Beneficiaries
educational purposes and not              and undue influence are taken                           Any person or entity provided
intended to be specific legal advice      into account)                                        for in the will by way of gift
or an exhaustive summary. if you       •	 Legislative	       requirements	                     or consideration becomes a
require legal advice you should           (specific to each State or                           beneficiary. The executor may
consult with an experienced               Territory)                                           also be a beneficiary of the will,
solicitor in your jurisdiction.        •	 Execution	of	the	Will	(signed	by	                    common example being the
  Traditionally, the new Year is a        the person making the will and                       relationship of husband and wife.
time to make resolutions. it is also      witnesses by two independent                         if not specifically stated in the will   sell property, payment of funeral
an opportunity to reflect and make        witnesses, all in the company of                     or should no will exist, a court         and administration expenses are
or update your will. A will is, in        each other).                                         may apply the assets of an estate        common authorities given to
effect, a notice of your intentions                                                            in the following general order           the executor of the will. other
about how your property is to          Who can make a Will                                                                              express powers can be provided
                                         Just about anyone over 18 years                       until a beneficiary such as spouse,
be dealt with after death. As we                                                               children, grand children, surviving      to the executor or other parties
are all individuals, your will         of age should consider making a                                                                  as nominated to attend to such as
should reflect this and take into      will. obviously marriage, birth         “It is not      parent/s, other siblings, children
                                                                                               of other siblings or the State is        business interests, partnerships or
account all of your wishes and         of children, divorce and purchase      unusual to                                                guardianship of children to name
                                       of a house or investment makes it                       identified.
incorporate a degree of succession                                             mistrust                                                 a few.
planning to provide for unforeseen     more important to update or make
                                       a will.                                your easy        Gifts
circumstances.                                                                                                                          Superannuation
  There is no requirement by law       Appointment of                          spending          Specific, general or personal
                                                                                                                                          Your Super will normally be
                                                                                               gifts may be provided for in the
to engage a solicitor to make a will
                                       Executors and Trustees                 children or      will and should be described in
                                                                                                                                        paid out in accordance with
and you can have a go at putting                                                                                                        the Super fund Trust deed.
one together yourself. however,        The executor is the person/s            partner.”       as much detail as possible to avoid
                                    or parties of your choice, who                                                                      You can sign a binding death
numerous problems including the                                                                disputes between beneficiaries.
                                    are willing to act for you and                                                                      benefit (BDB) direction to the
choice of wording can render the                                                               Debts can also be forgiven in the
                                    administer your will. Usually this                                                                  superannuation fund trustee to pay
will to be void or contested after                                                             will and is treated as a gift or can
                                                                                                                                        your entitlement to your estate.
your death. Marriage or Divorce     will be your wife, husband or                              be included in the will as a debt
                                                                                                                                        This is a specialist area and advice
will revoke or void your will,      partner but the pressures of modern                        owed to the estate and may be            should be obtained.
with some exceptions across the     living with children from different                        either recoverable by the executor         everyone is going to die
States and Territories. one of the  relationships and the need for asset                       or appropriated to the interest or       eventually, whether or not you are
common mistakes made by many        protection may lead for a need to                          share of a beneficiary entitlement.      going to have some say in it by
is to have a spouse or beneficiary  provide a number of alternatives                           Most States have leglislation            deciding to give the kids a bonus
of the will witness the document    to who is the executor.                                    which addresses this issue.              or leave it to the cats’ home is up
which may exclude them from            Your will can also create a
                                                                                                                                        to you. But remember, without a
any benefit.                        Trust for beneficiaries and                                Additional Powers                        will the government may decide
  Many people underestimate the     appoint guardians for dependants.
                                                                                                 Payment of debts, contracts to         for you. ■
value of a having a comprehensive,  generally the executor of the will
professionally prepared will.       is also appointed as a Trustee
Rule of thumb: less money spent     and can be authorised formally
in making your will equates to      by quite detailed provisions to
                                    control business interests, buy and                                    Brendon Foyle is a second generation driver who
potentially more money spent by                                                                             has been driving for 23 years with experience in
your beneficiaries to enforce it.   sell real property, discretion to
                                                                                                          dangerous goods, general, refrigerated and tanker
                                    invest , et cetera to further manage
                                                                                                          freight. He is now a Solicitor of the Supreme Court
Requirements of a Will              the assets held by the Trust and                                         of Queensland and still gets behind the wheel.
•	 The	 document	 is	 a	 Will	 and	 provide for the beneficiaries.                                            Contact Brendon at Praeger Batt Solicitors on
   shows an intention to make for example, it is not unusual                                                  07 3854 4100 or bfoyle@praegerbatt.com.au
   a will. (i.e. “last will and to mistrust your easy-spending
   Testament of …”)                 children or partner so a will may
•	 The	person	making	the	Will	has	 direct that the Trustee only pay-
   capacity (issues such as age, out an income each year.

				
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