Felicio Law Firm

If you’re planning a Will or already have one, making sure it meets every essential element of a valid Will in NSW could be the most important legal step you ever take. Your family’s security, your life’s work, and your final wishes all depend on whether your Will satisfies specific legal requirements under New South Wales’s Succession Act 2006. Get them right, and everything you’ve built goes exactly where you want it to go. Miss even one, and the consequences can be heartbreaking — and very costly.

We know that’s a lot to take in. But here’s the reassuring part: these five elements are entirely achievable with the right guidance. At Felicio Law Firm, helping NSW families protect what matters most is what we do every single day.

But first, a reality check. Research by NSW Trustee and Guardian in 2023 found that 60% of NSW residents do not have a valid or legal Will in place. On top of that, family provision claims in NSW — where someone challenges a Will or an estate — numbered 1,461 in 2024 (ABC, 16 Sep 2025). And with an estimated $3.5 trillion set to transfer between Australian generations over the next 20 years, the stakes have never been higher for every Australian family.

So let’s walk through what the law actually requires.

The Legal Framework: NSW’s Succession Act 2006

In New South Wales, wills are governed by the Succession Act 2006 (NSW) (the “Act”). This is the legislation that sets out every requirement a will must satisfy to be legally valid. It’s the rulebook, and the NSW Supreme Court enforces it strictly.

When a Will is declared invalid, it’s treated as though it never existed. In that situation, your estate may be distributed according to the intestacy rules — a rigid legal formula that has no regard for your actual wishes, your relationships, or your circumstances. That outcome is entirely avoidable. Here are 5 essential elements you need to know.

Element 1: The Testator Must Be of Legal Age

Under the Act, a person making the Will (i.e., the testator) must generally be at least 18 years of age.

However, there are limited exceptions.

Under section 16 of the Act, a person under 18 (a “minor”) can make a formally valid Will with Supreme Court authorisation. However, the Court will only approve if it is satisfied the minor understands that:

• the Will’s nature and property disposed;
• it reflects their true intentions; and
• the authorisation is reasonable in all circumstances.

Element 2: The Testator Must Have Testamentary Capacity

The testator must have testamentary capacity, or the mental ability to understand what they are doing, why they are doing it, and what effect it will have.

The legal test for testamentary capacity in Australian courts still comes from the landmark English case Banks v Goodfellow (1870), which NSW courts have consistently applied and affirmed.

Under this test, the testator must:

• understand what a Will is and what it does;
• have a reasonable understanding of the property they own and are giving away;
• know who might reasonably expect to benefit — for example, a spouse, children, or other dependants; and
• not be suffering from any disorder of the mind that distorts their judgment in a way that affects how they make the Will.

This is not an all-or-nothing test. A person with dementia or a psychiatric condition may still have capacity, depending on the nature and extent of their condition and the simplicity of the Will. Courts assess capacity at the time the Will is signed — or, if instructions were given earlier, at the time those instructions were provided.

Why does this element generate so much litigation? Because it is often raised after someone has died and can no longer speak for themselves. The evidence is retrospective — medical records, solicitor file notes, testimony from family and carers. When capacity is successfully challenged, the Will is void. That is why experienced estate planning solicitors document their assessment of a testator’s capacity carefully, and why a medical assessment is sometimes recommended.

We understand this is a sensitive area, especially when a parent or loved one’s health is declining. At Felicio Law Firm, we approach these situations with genuine compassion and care.

Element 3: The Will Must Be Made Freely and Voluntarily

A Will must be the genuine expression of the testator’s own wishes — made without undue influence, coercion, or fraud from any other person.

This doesn’t mean families can’t talk, suggest, or express preferences. Of course they can. Life is full of those conversations. What the law prohibits is pressure so overbearing that it substitutes someone else’s decision for the testator’s own. NSW courts draw a clear line between legitimate persuasion and coercion that overrides the testator’s independent judgment.

Undue influence tends to surface in situations where a vulnerable or elderly testator is heavily dependent on a carer who also stands to benefit, or where a Will is dramatically changed shortly before death without obvious reason. It also arises where the testator has been isolated from family and other trusted people.

But proving undue influence is notoriously difficult. The burden falls on the person challenging the Will, and the courts require solid evidence. But when it is proven, the affected gift — or the entire Will — can be set aside.

Fraudulent misrepresentation is a close cousin. If someone feeds false information to a testator — for example, telling them that a child has abandoned them when they haven’t — and the testator changes their will as a result, the courts can strike out that part of the Will. The testator’s true wishes deserve protection, and NSW law provides it.

Element 4: The Will Must Be in Writing and Properly Executed

This is the element that trips up the most homemade or Will kits. It is also the one where small mistakes can have enormous consequences.

Section 6 of the Succession Act 2006 (NSW) sets out clear formal requirements. For a will to be validly executed:

• it must be in writing — handwritten, typed, or printed;
• it must be signed by the testator, or by someone else in the testator’s presence and at their direction if the testator cannot physically sign;
• the signature must be made or acknowledged by the testator in the simultaneous presence of at least two witnesses; and
• both witnesses must sign the Will in the testator’s presence.

Every single step is mandatory. Courts have seen Wills fail because one witness stepped out of the room before the testator finished signing. Others have been challenged because the testator and witnesses signed on different days. These are not technicalities — they are the guardrails that prevent fraud and ensure the document is authentic.

One point deserves particular attention.

Under Section 10 of the Act, a gift to a witness — or to any person claiming under a witness — is generally void, even if the rest of the Will remains valid. However, this rule does not apply where at least two other witnesses are not beneficiaries, where all persons who would benefit from the avoidance of the gift consent in writing, or where the Court is satisfied the gift was made freely and with the testator’s knowledge and approval.

This is why witnesses should always be independent adults who receive nothing under the Will.

Element 5: The Will Must Reflect a Genuine Testamentary Intention

The fifth element is perhaps the most fundamental: the document must actually be intended to operate as a Will.

This means the testator must genuinely intend, at the time of making the document, that it will take effect as the legal disposal of their property upon their death. A letter written to a family member, a note in a diary, or a text message might express wishes — but they are not automatically a Will. Whether they qualify depends entirely on intent, and that question can only be resolved by a court.

Beyond intention, a well-drafted will needs certainty. Beneficiaries must be identifiable. Gifts must be described clearly enough to be administered. And while appointing an executor is not strictly a requirement for validity under the Act, having no executor creates real and entirely avoidable practical problems.

Vague language is a gift to litigators. When a Will says “to my children equally” but the testator had children from two different relationships — and only meant one set — the courts must interpret the Will. When “my house” refers to one of several properties, the ambiguity must be resolved. These disputes are costly, slow, and damaging to family relationships. Precise drafting, guided by an experienced Estate Planning Lawyer, prevents them before they begin.

What Happens if a Will is Invalid?

If a Will fails to satisfy any one of these five elements and is declared invalid, NSW’s intestacy rules under the Act apply. The estate is distributed according to a fixed legal formula, one that has nothing to do with your actual wishes.

The formula prioritises a surviving spouse or de facto partner, then children, then more distant relatives in a set order. If the deceased had children from a prior relationship, the distribution can become complicated and contested.

A de facto partner is only recognised under the intestacy rules if the relationship lasted at least two years or produced a child. A partner who does not meet this threshold receives nothing at all under the intestacy rules, regardless of how committed or long-standing the relationship appeared to be.

Also, friends, charities, and others you may have wanted to provide for receive nothing.

That’s why a valid Will, professionally prepared and kept up to date, is one of the most important things you can do for the people you love.

Protect Your Legacy

You have worked hard to build your life in NSW. Whether it’s your home, your business, your savings, or the relationship you want to protect — a valid Will is the foundation of all of it.

At Felicio Law Firm, our friendly team have been fostering relationships for a lifetime, providing compassionate, professional, and dedicated legal solutions to individuals, families, and small businesses across NSW. We offer high-value, personalised service that puts you first, and we take the time to get your estate planning right.

We can help you with your Will, powers of attorney, enduring guardian appointments, and a complete estate plan tailored to your circumstances. Expert legal solutions don’t have to be complicated or out of reach.

If you’re thinking about making or updating your Will, or if you’ve been putting it off because life got busy, please don’t wait any longer. Your family deserves that peace of mind.

Talk to one of our friendly team today.

If you’re 18 or older, you’re not too young to write a Will in New South Wales.

Also, if you own assets, have superannuation, or care for dependants, it’s already the right time to make a Will.

Waiting could leave loved ones grappling with legal entanglements and financial distress. Real-life examples reported by major news outlets show just how common and costly this can be.

In one case, the sudden death of a 32-year-old man without a Will or enduring power of attorney left his family facing a five-year legal ordeal, involving superannuation, cryptocurrency, and even the care of pets, as highlighted by ABC News on 3 July 2024.

Similarly, the surprising death of One Direction star Liam Payne in October 2024 at just 31, without a Will, left a £24.3 million estate to be distributed according to government rules. The administration of this estate fell to his former partner and a lawyer.

Why Young People Should Think About Estate Planning

The idea that you need to be older or wealthy before you make a Will is a common misconception—and a dangerous one. Under NSW law, if you pass away without a valid Will, your estate is dealt with under intestacy rules. That means government legislation, not your personal wishes, decides how your assets are distributed. For grieving families, this process can drag on for months, creating stress, delays, and unnecessary costs.

Even if you don’t think you own much, most young adults in NSW have more to their name than they realise. Consider:

• Superannuation funds (often with insurance benefits included)
• Equity in property, even with a mortgage
• Bank accounts, shares, or managed funds
• Vehicles, electronics, and jewellery
• Digital assets, such as cryptocurrency, online businesses, or valuable social media accounts

Superannuation alone can be a major asset. Without proper death benefit nominations, the trustee decides who receives it, often after lengthy investigations. This can delay financial support for the people who need it most.

Estate planning lawyers like ours often advise young adults to consider not just a Will but also enduring powers of attorney and advance health directives. These documents ensure someone you trust can take charge of your financial, legal, or medical affairs if you’re no longer able to.

Legal requirements for a valid Will in NSW

• Minimum age: You must be 18 or older for your Will to be legally effective in NSW.
• Testamentary capacity: You must have the mental ability to understand the nature of the document, its consequences, and how you want your estate distributed.
• Formal Requirements: Under Section 6 of the Succession Act 2006 (NSW) (the Act), a Will must meet the following conditions:
  • Be written down.
  • Be signed by the person making the Will (called the testator), or someone else signing it in their presence and at their direction.
  • The testator must sign or confirm their signature while at least two witnesses watch together.
  • At least two of those witnesses must then sign the Will while the testator watches (the witnesses don’t have to sign at the same time).

Limited Exceptions for Minors:

• Marriage Exception: A Will made by a minor (person under 18) is valid only if made in contemplation of a marriage that takes place, or if the minor is married.
• Court Approval: The court can approve a Will under Section 16 of the Act for minors in specific circumstances
• Statutory Wills: Sections 18 to 26 of the Act allow the Supreme Court to authorise wills for those lacking testamentary capacity, including minors

However, any person younger than 18 seeking to make a Will requires expert legal advice due to the complex requirements.

The Consequences of Not Having a Will in NSW

Consider a 27-year-old who suddenly lost their spouse, leaving a baby behind. The spouse had no Will and left a mortgaged house, superannuation, and potential compensation claims related to the death. These circumstances can create several serious consequences, including:

• Delays in accessing money: Banks, superannuation funds, and other institutions may require extra paperwork before releasing funds.
• Uncertainty about who inherits: Intestacy laws determine beneficiaries, which may not match your intentions. Spouses, children, or other family members may receive different shares than you would have wanted.
• Complicated legal processes: Estates can take many months—or even over a year—to finalise, particularly if superannuation or other assets are involved.
• Extra costs: Legal fees, administrative expenses, and interest on unpaid bills can quickly add up while your family waits for access to funds.
• Potential disputes: Family members may disagree over entitlements, leading to stress, tension, or even court proceedings.

This example shows that writing a Will is not just for the elderly or wealthy. Losing a spouse is one of the most stressful experiences anyone can face, and a Will can help reduce the financial and legal burden during this difficult time. Your valid Will would serve both as a record of your wishes and as protection for the people you care about most.

When Should You Consider Writing a Will?

You should make a Will as soon as you have assets, responsibilities, or people who rely on you. Some key moments include:

• Buying property: Even with a mortgage, your home has equity that should be properly directed. If you co-own with a partner or friend, you also need to understand how joint tenancy or tenancy in common affects your estate.
• Starting a family: Parents of young children must plan for guardianship, inheritance management, and trusts to safeguard their children’s future.
• Building investments: Shares, managed funds, and superannuation accounts can grow quickly. Without a Will, they may not end up where you’d want.
• Owning a business: Even small businesses, partnerships, or freelance ventures may have valuable assets, contracts, and intellectual property that require proper succession planning.

Common Mistakes Young Adults Make

Many people postpone estate planning because it feels overwhelming or not urgent. make mistakes such as:

• Procrastination: Assuming you’ll get to it “later”. Unfortunately, accidents and illnesses don’t wait for the right time.
• Not updating beneficiary nominations: Outdated superannuation or insurance nominations can override your current wishes.
• Forgetting digital assets: Cryptocurrencies, domain names, or online businesses may be overlooked, leaving beneficiaries without access.

To learn more about these common mistakes, read our article here.

Why You Should Get Professional Help

Online templates can seem tempting, but they don’t account for complex family situations, blended families, or assets like superannuation and business interests. Experienced Estate Planning Lawyers like ours understand NSW succession law and can help you create a Will that works alongside your nominations, insurance, and tax planning.

We will also ensure your estate plan evolves with you. As you move through life stages—buying property, marrying, having children, or building wealth—your Will and other documents need to be reviewed and updated. We’re here to help.

Start Making Your Will Today

Take note, writing a Will isn’t about being old or rich. It’s about being prepared. Every adult in NSW with assets, superannuation, or dependants should take steps to protect their loved ones. Estate planning provides peace of mind that your wishes will be respected and your family won’t face unnecessary legal or financial hardship.

Our Estate Planning Lawyers Central Coast can help you write strong, practical estate plans that truly reflect your wishes. No matter if it’s your first Will, an update to reflect new circumstances, or more complicated issues like superannuation and business structures, we’ll walk you through the process with care.

We understand that starting the conversation about estate planning can feel daunting, especially when you’re young. But taking this step now is one of the most responsible decisions you can make.

Reach out to one of our expert Central Coast Wills & Estate Planning Lawyers today for a private consultation. Gain peace of mind knowing your loved ones will be cared for, no matter what the future holds.

Removing an executor of a Will in NSW may be necessary if the person appointed to manage the estate is delaying, refusing to act, or mismanaging assets. Executors are expected to administer the estate fairly and promptly — but what happens when they don’t?

This guide explains the grounds for removal of an executor and what the process involves.

What Are the Responsibilities of an Executor in NSW?

An executor has the legal duty to handle and complete the administration of a deceased person’s estate. In NSW, their key duties include:

• Applying for probate (if required)
• Collecting and protecting estate assets
• Paying debts and taxes
• Distributing the estate to beneficiaries
• Keeping clear records and accounts

Executors must act in the best interests of the estate, avoid conflicts of interest, and follow the Will’s instructions. But if that person becomes unfit, unwilling, or unable to perform those duties, beneficiaries or other interested parties may apply to the NSW Supreme Court to have them removed.

When Can You Remove an Executor of a Will in NSW?

The Court will not remove an executor simply because of a disagreement. There must be strong legal grounds. These include:

• Misconduct or dishonesty: Using estate funds for personal purposes, failing to keep records, or acting in favour of certain beneficiaries over others are all serious breaches.
• Negligence or delay: If the estate has not been managed properly or the executor is causing unreasonable delays (e.g., not applying for probate), this may justify removal.
• Refusal to act: If an executor is ignoring their duties or refuses to respond to requests from beneficiaries, legal action may be required.
• Incapacity: Mental or physical incapacity, including illness, dementia, or absence overseas, can prevent an executor from fulfilling their obligations.
• Conflict of interest: Situations where the executor’s personal interests compromise their objectivity may also lead to removal.
• Fraud or criminal behaviour: Engaging in dishonest conduct, such as forging documents or misappropriating funds, is a clear ground for removal.

Examples of Executor Misconduct in Australia

These scenarios commonly arise in legal proceedings:

• An executor sold the deceased’s home to a relative at a heavily discounted price.
• The executor failed to pay taxes owed by the estate, resulting in penalties.
• A beneficiary repeatedly asked for updates, but the executor ignored all communication.
• The executor used estate funds to pay off their personal debts.

If you suspect similar behaviour, it may be time to explore your legal options.

What If the Executor Refuses to Distribute the Estate?

In NSW, executors are expected to distribute the estate within a “reasonable time” — typically within 12 months of death. If that doesn’t happen, and no good reason is provided, beneficiaries may take legal action. This could involve:

• Sending a formal letter requesting action
• Applying to the Court to compel distribution
• Filing an application to remove the Executor altogether

Delays caused by tax issues or property sales may be justified, but complete inaction or avoidance is not.

What’s the Legal Process to Remove an Executor in NSW?

In NSW, removing an executor requires a formal application to the Supreme Court — but only if there are solid reasons. Courts don’t take the decision lightly and will only act if the executor is clearly unfit or unable to perform their duties.

Step 1: Seek Legal Advice

Start by speaking with an experienced lawyer, such as one of our Estate Planning Lawyers Central Coast. We’ll help you assess whether your concerns meet the legal threshold for removal and advise you on the best course of action. This first step is crucial, as not every case will justify court intervention.

Step 2: Collect Supporting Evidence

To persuade the Court, you’ll need to show clear grounds for removal.

Gathering documentation early — including emails, timelines, and financial records — strengthens your case and may even prompt the executor to step aside voluntarily.

Note: If the executor hasn’t applied for probate yet, they can formally renounce the role by filing with the Court. This avoids a contested application, and another eligible party can step in without a hearing — unless there’s a dispute.

Step 3: File Your Court Application

Next, your lawyer will prepare and lodge a removal application in the Supreme Court, supported by affidavits and evidence. All relevant parties, including the executor and beneficiaries, must be formally notified.

Step 4: Attend the Court Hearing

If there’s a dispute, the case will go to a court hearing. Both sides present evidence, and the Court will decide whether the executor’s removal is in the best interests of the estate — not just the wishes of the beneficiaries.

What Happens After an Executor Is Removed?

If the Court removes an executor, it must ensure the estate is properly managed by appointing someone else to take over the role.

1. Appointing a Replacement Executor

If the Will names a substitute or alternate executor who is eligible and willing to act, the Court may authorise them to take over the administration of the estate.

Where co-executors were originally appointed, the Court may also decide that the remaining executor(s) can continue managing the estate without the need for a replacement.

2. Appointing an Administrator

If no alternate executor is named, or if all named executors are unwilling or unable to act, the Court may appoint an administrator instead. This person could be:

• A principal beneficiary
• A neutral third party (such as a solicitor or trustee company)
• The NSW Trustee & Guardian, if no suitable private individual is available

A beneficiary or even a creditor of the estate may apply to be appointed as administrator. The Court will select the person best placed to carry out the estate’s administration fairly and efficiently.

What Are the Legal Costs of Removing an Executor?

The cost varies based on complexity and whether the matter is contested. Here are some estimates:

• Simple, uncontested removal: $10,000 to $20,000
• Contested proceedings: $30,000 to $100,000 or more

Court filing fees, legal representation, and expert reports can all add to the expense. If you win the case, the costs may be reimbursed from the estate — but if you lose, you could be ordered to pay the other side’s legal fees too.

How Long Does It Take to Remove an Executor?

Again, this varies depending on the complexity of the case. Here are some typical time frames:

• Uncontested cases: Around 3–6 months
• Contested matters: 12–18 months or longer

Delays are often caused by court backlogs, evidence gathering, and negotiation between parties.

During this time, the estate may not progress, and assets may be frozen — so early action is important.

Conclusion

Removing an executor of a Will in NSW is a serious legal step — but sometimes, it’s necessary to protect the estate and ensure the deceased’s wishes are honoured. Whether due to misconduct, incapacity, delay, or outright refusal to act, the law gives beneficiaries the tools to seek justice.

Make sure you understand your rights and the risks before taking action. The process involves strong evidence, proper legal steps, and may take months or longer — especially if contested.

How Our Estate Planning Lawyers Can Help

We help clients across NSW navigate the complex process of executor removal. From initial advice to full representation in the Supreme Court, we guide you every step of the way. We’ll review your case, collect the necessary proof, and move quickly to safeguard your inheritance and peace of mind.

Concerned about how an estate is being managed or want to prevent future disputes? Contact one of our Central Coast Wills & Estate Planning Lawyers for a confidential consultation and clear advice on your next steps.

In July 2023, a tragic boating accident off Sydney Harbour claimed the life of Andrew Findlay, a successful 50-year-old technology entrepreneur. What followed was not just a time of mourning for his family, but the beginning of a complex legal battle over his $13.5 million estate. The high-profile case of Kemp v Findlay [2024] NSWSC 902 serves as a stark reminder of the critical importance of professional Will preparation and the potential pitfalls of informal or do-it-yourself (DIY) Wills, as this article explains.

If you are considering writing a Will or updating your existing Will, consult with our expert Wills and Estate Planning Lawyers to ensure your wishes are honoured.

The Heart of the Dispute

At the centre of the legal storm were two conflicting documents: a formally executed Will from 2015 and an informal, electronic document created in 2019. The initial Will bequeathed Findlay’s entire estate to his ex-partner, Elizabeth Kemp, while the revised document designated his three young children as beneficiaries.

The crux of the matter was that the 2019 document, despite clearly expressing Findlay’s updated wishes, had never been formally executed. It remained an unsigned Microsoft Word file on his computer. This oversight set the stage for a protracted legal battle that would ultimately be decided by the Supreme Court of New South Wales.

The Court’s Decision

In a landmark ruling, Justice Kelly Rees determined that the 2019 electronic document should be accepted as Findlay’s last valid Will, despite its lack of formal execution. The court was satisfied that Findlay had intended the document to operate as his Will without further formalities.

Key factors in this decision included:

• Findlay’s clear communication about the new Will to his cousin (the new executor) via email.
• His statement to his family law solicitor about changing his Will.
• The detailed nature of the 2019 document, which included specific changes to beneficiaries and executors.

Whilst this outcome aligned with Findlay’s apparent intentions, the case highlights the risks and uncertainties associated with informal Wills.

Lessons from Kemp v Findlay

This case offers several crucial lessons for anyone considering their estate planning:

• Regular Will Reviews: Life changes such as separation, divorce, or the birth of children should prompt a review of your Will.
• Clear Communication: Whilst the court considered Findlay’s communications about his new Will, relying on such evidence is risky. It’s far better to have a properly executed Will that clearly documents your wishes.
• Formal Execution Matters: Although the court accepted Findlay’s informal Will, this outcome is not guaranteed. Proper execution provides much greater certainty.
• Complexity Requires Professional Advice: Findlay’s situation, involving a high-value estate and young children, warranted professional legal guidance.

The Pitfalls of DIY Wills

Albeit DIY will kits and online will-making tools may seem convenient and cost-effective, they come with significant risks:

• Improper Execution: As seen in Findlay’s case, failing to properly sign and witness a Will can lead to lengthy and expensive legal disputes.
• Unclear Language: Legal terminology is precise, and DIY Wills often contain ambiguities that can lead to misinterpretation or challenges.
• Failure to Consider All Assets: DIY Wills may not properly account for all assets, especially complex ones like superannuation or business interests.
• Lack of Tailored Advice: Every person’s situation is unique, and DIY solutions can’t provide the personalised advice needed to address individual circumstances.
• Inability to Anticipate Challenges: An experienced lawyer can help structure your estate plan to minimise the risk of challenges or disputes.

The Importance of Professional Will Preparation

Engaging an experienced Wills and Estate Planning Lawyer offers numerous benefits:

• Legal Expertise: A Wills and Estate Planning Lawyer, such as ours ensures your Will complies with all legal requirements and uses precise language to clearly express your intentions.
• Comprehensive Planning: Professional advice considers your entire financial picture, including assets that may not form part of your estate, like superannuation.
• Tax Efficiency: A lawyer can advise on structuring your estate in a tax-effective manner, potentially saving your beneficiaries significant sums.
• Protection Against Challenges: Professional Wills are less likely to be successfully challenged, providing greater security for your intended beneficiaries.
• Regular Reviews: Many lawyers offer regular will review services to ensure your Will remains up-to-date and reflective of your current circumstances.
• Peace of Mind: Knowing your affairs are in order and your loved ones will be provided for can provide immeasurable peace of mind.

The Complexities of Modern Estate Planning

The Kemp v Findlay case also highlights the increasing complexities of modern estate planning. In today’s digital age, with blended families becoming more common and assets often spread across multiple jurisdictions, estate planning requires a nuanced and comprehensive approach.

Digital Assets: A New Frontier

One aspect not directly addressed in the Findlay case, but increasingly relevant, is the management of digital assets. These can include everything from social media accounts and email to cryptocurrency and online businesses. Many people overlook these assets when creating their Wills, but they can have significant sentimental or financial value.

A professional estate planner can help you inventory your digital assets and create a plan for their management or distribution after your death.

Cross-Border Considerations

In our globalised world, it’s not uncommon for individuals to have assets in multiple countries or beneficiaries living overseas. This can create complex legal and tax issues that require specialist knowledge. Professional advice can help navigate these international complexities, potentially involving the creation of multiple wills to cover assets in different countries.

Superannuation: Often Misunderstood

Superannuation is often one of the largest assets people have, yet many don’t realise that it doesn’t automatically form part of their estate. A professional estate planner can help you understand your superannuation arrangements and ensure that your superannuation benefits are distributed according to your wishes.

Blended Families: Balancing Competing Interests

Blended families present unique challenges in estate planning. Balancing the needs and expectations of current partners, ex-partners, and children from different relationships can be extremely complex. Professional advice is crucial in these situations, potentially involving strategies like testamentary trusts or mutual wills.

Business Succession Planning

For business owners like Findlay, estate planning isn’t just about personal assets but also about ensuring smooth business succession. A professionally prepared will can be coordinated with other business succession tools to ensure a smooth transition of business interests after death.

Testamentary Trusts: Advanced Estate Planning

Testamentary trusts can offer significant benefits in terms of asset protection and tax efficiency for beneficiaries. They can be particularly useful for protecting inheritances for vulnerable beneficiaries or providing tax advantages. However, setting up effective testamentary trusts requires careful planning and drafting.

Capacity and Undue Influence

Questions of testamentary capacity and undue influence often arise in Will disputes, particularly those involving informal Wills. When a Will is prepared by a solicitor, they typically assess and document the testator’s capacity, providing valuable evidence if the will is later challenged.

The Role of Executors

Choosing an appropriate executor is a crucial part of the estate planning process. Seeking professional advice can clarify the duties of an executor and assist you in selecting the most suitable individual for the position.

Advanced Healthcare Directives and Powers of Attorney

Comprehensive estate planning goes beyond just preparing for what happens after death. It also involves planning for potential incapacity during your lifetime through documents like advanced healthcare directives and powers of attorney.

How Felicio Law Firm Can Help

Felicio Law Firm specialises in comprehensive estate planning. Our experienced team can:

• Draft a legally sound Will that clearly expresses your wishes.
• Advise on complex issues such as blended families, business succession, and international assets.
• Help you understand and make provisions for assets not covered by your Will, such as superannuation.
• Assist with related documents like powers of attorney and advance care directives.
• Provide regular Will reviews to ensure your estate plan remains current.
• Offer executor support services to assist your chosen executor in administering your estate.

Conclusion

Whilst the Kemp v Findlay case shows that courts may sometimes accept informal Wills, it also demonstrates the stress, cost, and uncertainty that can result from not having a properly executed Will. The small investment in professional Will preparation can save your estate significant costs and your loved ones considerable stress in the long run.

Don’t leave your legacy to chance. Contact our friendly Wills and Estate Planning Lawyers at Felicio Law Firm today to ensure your final wishes are clearly documented and legally enforceable. We will help you navigate the complexities of modern estate planning and protect what matters most.

Legal claims on grandparents’ estates are expected to rise dramatically. Contact our expert wills and estate legal professionals to protect the future of your estate.

Grandparents’ roles have evolved over the years and can sometimes involve financial support or care for their grandchildren. Although this can strengthen bonds, unexpected legal challenges in estate planning may arise in the future. Specifically, grandchildren may contest a grandparent’s will through a family provision claim as observed in Curtis vs Curtis [2023] NSWSC 1164.

Background and Implications of Curtis vs Curtis

The grandchildren of Mr Barry Curtis (the deceased) made claims on his estate on the grounds of dependency based on the Succession Act 2006. In his will, the deceased named his son, Rodney Curtis (the grandchildren’s uncle), as the sole beneficiary. The judge ruled that the grandchildren were indeed partly dependent on the deceased. Consequently, the judge made provisions for the grandchildren’s eligibility to receive 20% of the sale of the deceased’s property.

This case illustrates several important aspects of family provision claims by grandchildren in NSW:

• Grandchildren can be eligible to make a claim if they can demonstrate dependency;
• The court will consider factors beyond just financial dependency;
• The needs of other beneficiaries (in this case, the son) are also taken into account; and
• The court has discretion in determining what constitutes “adequate” provision.

Dependency Under Family Provision Claims

In most states, grandchildren can contest wills if they can prove that, at some point, they were financially dependent on their grandparents. However, in NSW, these family provision claims may find support from certain conditions of section 59 of the Succession Act.

Key provisions related to grandchildren’s claims of dependency in NSW

1. Eligibility: Grandchildren must demonstrate that they were dependent on their deceased grandparent at the time of their death or at some earlier time.
2. Dependency Requirement: Partial or full reliance on the deceased at any one time for their upbringing, education, or career growth. Nonetheless, dependency extends beyond financial matters and includes emotional or physical support.
3. Nature of the Claim: The treatment for grandchildren is similar to those for other eligible applicants, such as children or spouses. However, the grandchildren must establish their need for provision from the deceased’s estate based on factors such as:

• financial circumstances
• the size of the estate
• their relationship with the deceased.

4. Consideration of Other Beneficiaries: The court will consider the claims of all potential beneficiaries. It will also determine if there is adequate provision for the proper maintenance, education, or advancement in life of the grandchild.
5. Time Limit: Within 12 months of the deceased’s death, unless the court grants an extension of time.

Strategies for Protecting Estate Your Estate from Future Dependency Claims

Seek Professional Advice

Protecting your estate from potential dependency claims by grandchildren requires a multifaceted approach. Given the complexity of estate law and its variations across states, consulting experienced estate planning lawyers such as ours is vital to protecting your estate from future claims.

Have a Clear and Detailed Will Drafting

The foundation of protecting your estate lies in a well-drafted will:

• Explicit statements: Clearly state your intentions regarding each potential beneficiary, including grandchildren. If you’re excluding someone, explain why.
• Detailed asset allocation: Provide a clear breakdown of how your assets should be distributed.
• Use of a “no-contest” clause: While not enforceable in all jurisdictions, this clause can discourage frivolous claims.
• Regular updates: Review and update your will regularly, especially after significant life events or changes in family dynamics.

Consider using Trusts

Trusts can be powerful tools in estate planning, offering both flexibility and protection:

• Discretionary trusts allow trustees to determine how and when to distribute assets, potentially reducing the grounds for a dependency claim.
• Testamentary trusts are created upon your death, and can provide ongoing support to beneficiaries while maintaining control over asset distribution.
• Special purpose trusts can be set up for specific purposes, such as education or healthcare, potentially satisfying moral obligations without creating dependency.

Our team of estate planning lawyers may guide you in determining which trust is best for you if you are considering this option.

Maintain Clear Records

Thorough documentation can be crucial in defending against future claims:

• Financial records: Keep detailed records of any financial support provided to grandchildren.
• Communication records: Document discussions about estate planning with family members.
• Reasons for decisions: Record your reasoning behind estate planning decisions, especially if you’re treating beneficiaries unequally.

Review and Updates your Will

• Estate planning is not a one-time event. Review your estate plan annually or after major life events like births, deaths, marriages, or divorces in the family.

Address Potential Dependency During Your Lifetime

Take steps to reduce the likelihood of dependency claims:

• Encourage financial independence: Support grandchildren in developing skills and careers that lead to financial independence.
• Set clear expectations: Communicate clearly about any support you provide and its limitations.
• Gradual reduction of support: If you’ve been providing significant support, consider gradually reducing it over time.

Family Agreements

Consider formalising family arrangements:

• Financial agreements: Document any financial support provided to grandchildren, clearly stating the terms and duration.
• Family provision agreements: In some jurisdictions, you can create legally binding agreements that limit future claims.

Mediation and Communication

• Open communication about your estate plans during family meetings can prevent misunderstandings and potential disputes. If conflicts arise, consult a lawyer before they escalate to legal claims.

Need more information? Consult our empathic team

The dynamics of modern families are changing, including the roles grandparents have on their grandchildren’s lives. Navigating the intricacies of the law to protect your estate can be daunting at first but we are here to help you. Our team of experts will guide you in exploring strategies that are beyond the coverage of this article.

While it’s natural to want to support your grandchildren, ensuring that your wishes are respected is equally important. Consult one of our lawyers to preserve your legacy and provide for your family in the way you intend.