Culturally Appropriate Will for an Aboriginal Person

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Australian Intestacy Laws have not been drafted with any consideration of what is culturally appropriate for an Aboriginal person

In cases where no Will has been made, the relevant Australian Intestacy Laws have not been drafted with any consideration of what is culturally appropriate for an Aboriginal Person.

Therefore, the law can operate to create disharmony and disputes.

When a Will has is drafted for an Aboriginal Person it needs to be culturally appropriate.

Making a culturally appropriate Will can help to:

➲ Prevent burial disputes;

➲ Ensure the distribution of the estate is is accordance with the wishes of the deceased;

➲ Make sure young children are provided and looked after by a person approved of by the deceased;

➲ Protect customary law matters and help keep them secret; and

➲ Place limits on the use of the deceased's name or photograph or image after their death.

Source:

Cover Page

Aboriginal Wills Handbook: A practical guide to making culturally appropriate Wills for Aboriginal People” by Prue Vines, 2nd edition [2015].

Note: The author of this book waives copyright and any part of this book may be reproduced provided acknowledgement is made of this source.

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This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

How do I execute my Australian Will so that it is validly witnessed?

Valid Will Witnessing Requirements

We recommend that the Will-maker and the witnesses all sign immediately after each other, in each other’s presence and use the same pen.

This is still the best way to make sure a Will is validly executed because then there can be no argument that the formal requirements were not complied with.

Important: A Beneficiary should not be a witness as they may lose their entitlement under the Will. There are exceptions but we still do not recommend using them unless there is no other option.

Points to note

1️⃣ Use 2 independent adult witnesses who do not have any possibility of a beneficial interest in your estate;

2️⃣ Do not sign copies of the Will as they may become “valid” Wills;

3️⃣ Nothing should be attached to the original Will with a pin or paper clip;

4️⃣ No alterations should be made to the Will after it has been signed.

Please contact us (if you are unsure regarding any of the above) to discuss the best way to proceed to execute your Will when you are ready.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What can I do if COVID-19 restrictions are making it impossible to execute my Australian Will or other key estate planning documents?

COVID-19 Emergency measures for the witnessing of Australian Wills+

As an emergency response to COVID-19 some states + territories have temporarily relaxed witnessing requirements for Wills + other key documents.

The relaxations allow remote witnessing using an audio-video link (AVL) over the internet. We strongly recommend they only be used as a last resort with the involvement of your lawyer. Practical COVID-Safe alternatives such as "Will through a window!" are preferred.

See our recent blog article "COVID-19 Safe Solutions for Witnessing Wills + Other Key Documents in Australia" for more information.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is the difference between per stirpes v. per capita estate distribution?

Per Stirpes = by branch = by the bloodline

Per stirpes means “by branch” in Latin, but is commonly understood to mean “by the bloodline.”

If your estate is distributed per stirpes after your death, each branch of your family will receive an equal share of your estate.

Per Stirpes ➲ Example

Imagine that Amy has three children: Brigid, Charles, and David.

At Amy’s death, all three children will receive one third of Amy’s estate ➲ if her estate was set up to pass per stirpes.

Assume that Brigid predeceased Amy, and that Brigid has two children, Eleanor and Fergus.

Now at Amy’s death, Charles and David will still receive one third of the Amy’s estate.

Eleanor and Fergus will each share in what would have been Brigid’s share, so both Eleanor and Fergus will take one sixth of Amy’s estate.

per stipes graphic
Source of example: Trust Company Oklahoma

Per Stirpes v. Per Capita

These legacy latin legal terms, whilst initially confusing, are very important and can change your childrens' (+ their heirs') inheritance.

The alternative to "per stirpes" is "per capita".

With "per capita" the share of any child beneficiary who dies before you is shared equally among your surviving children ... which means your predeceased child (and consequently, their heirs) would lose their share.

With "per stirpes", in the same scenario, instead of your predeceased child losing their share, it is preserved for their children (if any).

Additional Note:

If the term "per capita by representation" is used (also known as modern per stirpes, American per stirpes), please note that this changes the result of the “per capita" distribution so that it operates the same way as the traditional "per stirpes" distribution described above.

The use of this legal term invokes the concept of a “right of representation”.

This means the heirs of any child beneficiary who predeceases you have the right to representation so they can collect the property originally-intended to go to any predeceasing child beneficiary, so they don't lose their share.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Where can I safely store my Australian Will + Power of Attorney documents?

Safe Storage Facilities:

🔒 A.C.T Supreme Court
[$125 deposit, $46 withdraw. Prices effective as at 1 August 2020];

🔒 NSW Trustee + Guardian
[$29 one-time fee for a single document; $49 one-time fee for multiple documents. Prices current as at 19 November 2020].

🔒 N.T. Public Trustee
[“You can store your Will for free at the Public Trustee office in a specially maintained vault.”];

🔒 The Victorian Will + Power of Attorney Registry
[Anyone in Victoria can register information about where they keep their Will + Power of Attorney documents at no charge. There is also the option to physically store originals for free];

🔒 W.A. Will Bank
[Free service operated by the WA Public Trustee];

🔒 For Queensland, S.A. + Tasmania
[Contact Us].

Credits:

This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

How do I best provide for the long-term care of my Pet/s in my Will?

Long-term Care for your Pet/s …

✅ If you pre-decease your Pet/s …

Formal Arrangements

What do you need to understand in terms of your Will?

❌ You cannot name your Pet/s as direct beneficiaries in your Will.

❌ For clarity, you cannot include statements in you Will such as “I give $X to my cat Toby".

❌ Legally a pet is regarded as your property. That is, as one of your possessions.

❌ Pet/s are not legally recognised as a ‘person’ under the law.

❌ This means they cannot own property, hold a bank account, sue or be sued, or in this case, receive a gift as a beneficiary directly under a Will.

There are different approaches to providing for your Pet/s in your Will

The approach to take will depend on your personal circumstances, what you prefer for your Pet/s, and their needs.  

Some simple + valid options to consider for the long-term care of your Pet/s under your Will are as follows.  

✅ You can make a gift of you Pet/s to a trusted family member, after you have discussed it with them and they have agreed to take on the responsibility.

✅ Provide for an alternative, Plan B, trusted friend or family member, just in case.

✅ In addition, it would be wise to give a sum of money (legacy) in your Will to the actual recipient of your Pet/s to cover your conservative estimate of your Pet/s lifetime reasonable living, maintenance and anticipated healthcare costs based on your experience.

✅ Alternatively you could gift your Pet/s to a registered pet charity, rescue charity or pet shelter such as the RSPCA to be re-homed or adopted by another pet-lover.

✅ Ensure you get the name of the charity or shelter 100% correct, and provide for an alternative as a backup just in case.

✅ If you have more than one Pet, consider whether you want them kept together.

✅ Clearly communicate everything to your Executor/s so they can work quickly to ensure your Pet/s are kept as safe and comfortable as possible at a time which will be difficult for them as well as for all concerned.

Testamentary Pet Trust
[Legal Assistance Highly Recommended]

✅  Alternatively, you can establish a Testamentary Pet Trust for the care and maintenance of your Pet/s during their lifetime.

✅  Under such arrangements the trustee holds the money for the benefit of the named Pet/s.  

✅  When the Pet/s die, the trust is wound up and distributed according to the directions made in the Will, which might be to an animal charity or elsewhere.

✅  While this approach provides increased certainty that your allocated funds will be devoted to the long-term care of your Pet/s, it is also more costly to administer.  

✅  Choice of trustee is important.

✅  Someone trusted to carry out the terms of your trust, preferably independent and experienced, needs to be appointed in the Will as trustee for this purpose.

Some Pets can live up to 100 years or more …

Certain species of animals like turtles, koi fish + birds (e.g., parrots) can live up to 100 years or more.  

❌ In most state and territories of Australia (except South Australia) the life of a Trust is a maximum 80 years;

✅ if your Pet/s could outlive the useful life of the Testamentary Pet Trust, it becomes crucial that you seek legal advice in order to create a specific plan for what is to occur if your Pet/s outlive the Trust established for its long-term care.

Don't give your Pets more than they need!

❌ Any gift well in excess of your Pet/s actual needs, opens the door to the possibility that your Will might be challenged by eligible beneficiaries.

NSW Case example[1]: Left everything to the RSPCA + had children who were eligible to make a family provision claim

No Pets were involved.

The Will disinherited eligible beneficiaries, instead giving everything to the RSPCA.

Mr. Simpson left his entire estate via his Will to his second wife, and in the alternative should she pre-decease him, to the RSPCA.  

Nothing was left to his three children from his first marriage.

As it transpired, his second wife pre-deceased him, so everything went to the RSPCA.  

The estate after sales of all estate property amounted to a total of $397,453.58 in cash.

The three children from Mr. Simpson's first marriage successfully contested the Will under family provision legislation and were awarded 40% of the estate after legal costs.

❌ Leaving everything to an animal charity (or any other charity) is not wise where there are children, family and others who may be eligible to make a family provision claim on your estate.

❌ The wasted legal costs paid out of the estates in this case were circa $50,000.

What if you make no special arrangements for your Pet/s?

Your pets are your property so if you make a Will and don’t make any specific arrangements for them, they will form part of your residuary estate.

Whoever you have designated to inherit the residue of your estate will then be entitled to take ownership of your Pet/s.  

If you have not spoken to your residuary beneficiaries, it may be unclear which beneficiary is to take care of which Pet/s.

❌ It is not difficult to foresee the potential for further disputes arising!

Companion Animal Law Guide: 2nd Edition

➲ Compiled by the Young Lawyers, Animal Law Committee of the Law Society of NSW

Hard copies can be found in the NSW State + Local Libraries or you can view/download the online guide via the Resource Link provided at the following State Library of NSW webpage: Companion Animal Law Guide New South Wales.  

Footnotes:
[1]. Marshall & Ors v Redford [2001] NSWSC 763

Further Reading:

For a more detailed discussion please refer to our blog article “Your Pets are Family: Providing Emergency + Long-Term Care for your Furry, Fluffy or Fine-Feathered Friends!"  by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.