Rod Genders is a senior Australian lawyer specialising in Wills and Estate Planning, Probate and Estate Administration, Trusts and Guardianship and Inheritance Claims and Contested Estates in South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is an international author and speaker. Rod is the 3rd generation of Genders in the law and has been practising specialised law since the mid 80’s. He has acted as counsel or consultant to in excess of 50 other firms around Australia. Rod holds the SA state record for the highest ever personal injury award of damages, and has been involved in several of the largest personal injury claims in Australian legal history. For over 10 years he served on the Council of the Law Society of South Australia and is a senior member of its Succession Law Committee. Rod was a founding committee member of the South Australian branch of the London-based Society of Trusts and Estate Practitioners (STEP) for 8 years and was the founding Chair of the international STEP Digital Assets Special Interest Group. For over 25 years Rod has chaired a private committee enquiring into the affairs of protected persons. He is a member of the Law Council of Australia, and a member of its Succession and Elder Law Committee. Rod is one of only three Accredited Specialists in Wills and Estates law in South Australia, as recognised by the Law Society of South Australia.
As a matter of law an entitlement under a superannuation fund does not automatically form part of the assets of a deceased estate.
All superannuation funds in Australia are trusts, which are governed by their respective deeds of trust, subject to the Superannuation Industry (Supervision) Act 1993 (Cth), and administered by a trustee who holds a discretion in terms of the persons whom the trustee decides should receive the superannuation trust fund proceeds.
Turning 50 used to mean that it was time to begin thinking about retiring. That is not the case anymore. Now 50 is just middle-aged, with another quarter-century of busy productive life ahead.
To paraphrase Kermit the frog – “It’s not easy being wise”. I thought turning 50 would mean that things slowed down, calmed down and got easier. Instead, the pace of life seems to be quickening.
Turning 50 is a good time to start thinking about what you’ve learned so far, and reflecting on maybe becoming a “modern elder” and sharing some stories and wisdom with people who are finding their own paths a bit too challenging today.
Estate planning is not solely about preparing a Will, and with progressive illnesses you need to think about estate planning as planning for the future stages of your disease as it progresses.
The life planning portion of estate planning can be very different for a person with a progressive illness than a person without.
Parkinson’s, Alzheimer’s, Muscular Dystrophy, Multiple Sclerosis, Macular Degeneration: there are dozens of illnesses that are progressive and (so far) incurable. They require special care from an estate planning perspective.
Generational change in attitudes mean that more people than ever before are now prepared to challenge a Will if they don’t get what they regard as a fair share
A recent survey in the UK reveals that one in four people would mount a legal challenge against a loved one’s Will or estate if they were unhappy with it.
UK Court statistics confirm such disputes are on the rise, reflecting the increased readiness of family members to oppose a relative’s last wishes, with a record number of inheritance disputes now reaching Court.
When executors goes bad, and what to do about it…
Several times each month, my phone will ring, and someone will tell me about a family member who is doing the wrong thing in the administration of a deceased estate.
It’s often a sibling. For some reason, some brothers and sisters can have a rivalry that borders on all-out warfare. There have been times when I’ve had sibling-executors in my office who couldn’t agree on the colour of an orange! (The expression ‘cats and dogs’ comes to mind).
Here’s a quick roundup of some interesting news items from the world of Wills and estates.
Hoist on his own petard? Father who denied paternity is excluded from dead child’s estate
A UK Court has decided that the substantial estate of a mentally disabled child who died without a Will should be distributed to his mother and his foster family.
The court excluded the child’s biological father from inheriting a share because he had denied paternity and played no part in the child’s life.
Forget about religion or politics. If you want to start an argument on Facebook, try talking about the possibility of someone’s Will potentially being contested.
Boy, does that get people riled-up!
I’m always trying to educate people about Wills and estates, and the topic that most divides opinion relates to what is called ‘testamentary freedom’.
Most people in Australia badly misunderstand what happens to their superannuation after they die.
The biggest mistake people make in this area, is thinking that they can give their super to whomever they wish outside of their Will.
In fact, federal Australian legislation places substantial restrictions on who can receive your super after you’re gone.
Sometimes the Executor of a Deceased Estate gets pressure from family and other beneficiaries to do questionable things in the administration of the Estate.
Here are a few of the higher-risk demands frequently directed at nervous Executors by pushy relatives:
1. Obtain a Grant Of Probate As Quickly As Possible
Sometimes relatives and other potential beneficiaries might push an Executor to go faster than they should. Almost always, those beneficiaries will have their own interests at heart, without necessarily considering your rights, duties and responsibilities as Executor, nor the other interests attaching to a Deceased Estate. A prudent Executor might do well to remember the adage: Good. Fast. Cheap. Pick 2.
In South Australia, generally Probate cannot be applied for until at least 28 days after death. In certain circumstances an urgent application can be made faster than this, however special reasons need to be proven.
“You never know anybody until you’ve shared an inheritance with them”
Challenges to Wills are far less common than challenges to estates. A Will can be contested or challenged when it is alleged that :
The Will was executed under undue influence from others;
The Will was executed when the testator lacked capacity to understand what he/she was doing. This is increasingly common due to the rise of dementia in our ageing population;
