Protecting Your Inheritance

Ensuring that your estate (your house, unit, land, shares or property) passes to the person intended or that you receive your entitlement to an inheritance can be troubling issues. There are a number of steps that you can take to either protect your inheritance or ensure that your estate passes to those intended;

1. The critical and most fundamental action that can be taken to ensure that you receive your inheritance is to ensure that you keep in touch with your parents.

Further if your parents tell you what they intend to undertake in respect of their Will and how their estate is to be distributed, (whilst it is not strictly compliant with the legislation) it is important to document these comments and create a record of what was said, when it was said and who was present. If your parents are in their later years and they have not made a Will, talk to them about making a Will and ensuring that their intentions are adequately recorded.

2. The legislation in Queensland currently preserves the right of a dependant, spouse and other persons as set out in the legislation of having an entitlement to be maintained should the person making their testamentary document (Will) not have provided for them. In this regard if for example your mother or father has remarried then it is critical to ensure that you maintain your inheritance with both parents as you have no relationship with your step mother or step father and therefore have no entitlement to be maintained under the step mother’s or step father’ Will.
Accordingly, it is critical to seek advice at an early time as time limits apply in making a claim to be maintained. Just because your step mother or step father says that they make sure you are taken care of is not legally binding and should you not seek provision from your immediate parents Will/Wills and it passed to the step mother or step father you will have no entitlement to seek a claim in respect of the step mother or step father’s estate.

3. To ensure that your estate passes to the intended beneficiaries it is critical to seek advice from an experienced succession practitioner.
An experienced succession practitioner Joseph O’Hare will ensure that the correct testamentary trust, life interest, life estate, constructive or resulting trust or other conditional gift or bequest is correctly termed in your Will to ensure that it is received by your children and not other persons who would seek to make a claim from it.

A trust can be created in the testamentary document to allow for payment of necessities, food, welfare, education and support for infant beneficiaries and to ensure that any age requirement prior to taking a part of an estate is maintained and enforced notwithstanding the current case law which may defeat the testator’s intent.

A testamentary trust can provide for the distribution of capital and income and ensure that the estate not distributed is protected from third parties such as creditors. The beneficiary can be the trustee of their own trust and also a third party or trustee can be a trustee of the trust who is not related to the beneficiaries. A testamentary trust where the capital is protected can often assist in respect of beneficiaries who are unable to manage their own financial affairs, have difficult in respect of creditors, have a gambling or other addiction which provides that they historically would not be responsible in respect of financial change.

4. One of the fundamental requirements of making a Will is that you must have what is referred to as testamentary capacity or in other words that you be of sound mind and not be suffering from any mental infirmity.

However, if you unfortunately find yourself in that circumstance or one of your relatives or friends are in that circumstance the Queensland legislation (Section 21 and 22 of the Succession Act 1981 Queensland) empowers the Court to give leave authorizing a Will to be made or to be altered when that person making the Will does not have testamentary capacity.
In a recent Queensland Supreme Court decision the Court ordered a Will to be made for a person who had a significant health issue which prevented communication verbally or in writing. Subject to the evidence of the intent of the person wishing to have the Will made the Court will make an Order of that inheritance.

To ensure that your inheritance is protected or to ensure that your estate passes to the persons you wish it to pass to it is critical to seek the advices of an experienced succession lawyer Joseph O’Hare of our office who has been practicing in succession law for over 30 years.
Please contact us should you have any questions or issues arising from this article.

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