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.
Western Australian Supreme Court Master Craig Sanderson has publically stated in a 2014 judgment that “Homemade Wills are a curse,” and inevitably lead to protracted and expensive legal battles in family disputes involving substantial estates.
Master Sanderson said the legal issue around the proper determination of the deceased’s Will could have been avoided if he had “consulted a lawyer and signed off on a Will that reflected his wishes”.
Master Sanderson warned of the dangers of homemade Wills, saying there was no question that engaging a properly qualified and experienced lawyer to draft a Will was “money well spent”.
“But where, as here, the estate of the deceased is substantial, the Will is opaque and there is no agreement among the beneficiaries, the inevitable result is an expensive legal battle which is unlikely to satisfy everyone.”
This view is supported by Rod Genders, who is a senior Australian lawyer specialising in trusts, Wills and estate planning, accident compensation, probate and deceased estate administration in Adelaide and throughout South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia.
Baby Boomers were born between 1945 and 1965. As a segment of Australian society we represent a BIG chunk of our national population, and account for a massive percentage of the nation’s private net-worth.
According to the Australian Bureau of Statistics people aged 65 years and over made up 13% of Australia’s population at 30 June 2007. This proportion is projected to increase to 25% in 2056 and to 28% in 2101.
As we prepare to transition into retirement & beyond, we are about to witness the greatest transfer of wealth ever in Australia’s history.
However 2010 Australian research commissioned by the Salvation Army from Roy Morgan Research reveals that nearly two thirds of the adult Australian population does not have a Will. The research also shows 40% of Australians aged 25+ have experienced or know someone who has experienced family conflict as a result of a family member not leaving a Will.
Dying without any Will is called intestacy. When that happens, the government of the State where you die will determine what will happen to your assets. This can lead to unintended people (or even the government) gaining ownership of your hard-earned assets.
Many Australians have no idea what happens to their assets after they die, and sadly many rely on the misguided notion that a Do it Yourself Will is sufficient to protect their family and assets.
In June 2010 the Supreme Court of South Australia Court effectively granted an elderly woman’s wish to die.
The woman was in her 70s and confined to a wheelchair. She instructed her nursing home to stop giving her food and drink and the drug insulin, knowing she would die.
She clearly asserted her right to refuse to take food and medication. The Court case was instigated by the Nursing Home in which she resided, because of concerns that her carers might face prosecution for assisting in a suicide or committing other crimes if it complied with her desires.
The judgment is a first in South Australia and reflects a similar ruling in Western Australia in 2009, where the Chief Justice of the Supreme Court of Western Australia, held that Christian Rossiter be allowed to withdraw nutrition & medication, even though the undoubted consequence of this would lead to his death.
Rossiter had become a quadriplegic after a road accident, and retained full ability to understand his condition and to make reasoned choices on his own behalf. His fully functioning mind was trapped within a body which was unable to undertake any basic human functions’. Nutrition was provided to him through a tube inserted directly into his stomach.
Discretionary trusts (often called family trusts) are very powerful planning tools you can use for all kinds of purposes. Trusts can simplify & minimise or even avoid probate, protect your beneficiaries from creditors or divorcing spouses and
can provide for education for grandchildren or your favourite charities.
When a trust is part of your overall comprehensive estate plan, you should try to avoid these common trust mistakes:
Mistake 1: Failing to title assets in the name of your trust
If you have not put your assets into your trust, also called “funding” your trust, you have lost some of the benefits of your trust.
Any assets that are in your own name at the time of your death will probably need to be probated. However, any assets that are titled in the name of your trust at the time of your death will avoid probate and usually result in lower after-death administration costs.
In order to receive the protection and benefits capable of being provided by the trust, generally (except for superannuation funds and certain annuities) most of your assets would need to be transferred into your trust during your lifetime.
Court battles over estates are increasing in South Australia. Is your plan strong enough to withstand a challenge?
In recent years, Australia has seen a steady rise in Will disputes and inheritance challenges. Families are finding themselves entangled in costly and emotionally draining court battles, often at the very
Introduction to Super
Most Australians have some superannuation.
There are 5 main types of super funds in Australia: retail, industry, public sector, corporate and self-managed.
Most Australians will have their super with a Retail Fund like MLC or Colonial First State) or an Industry fund (like CBUS or HostPlus).
Understanding Superannuation Death Benefits
There is a common meme on the internet that your debts die with you. Apparently – for some people – it is the height of their ambition to spend everything they can during their lifetime, and then have their final cheque to their funeral director bounce for lack of funds.
Our superannuation death benefits and our family home (if we are lucky enough to own one) are the two largest assets for most ordinary Australians.
Yet most Aussies (including most accountants and lawyers) are utterly gobsmacked to discover that their super does NOT automatically form part of their deceased estate when they die, AND that they CANNOT just treat their super like their Will, and give it to whomever they wish, as if their super is just like a bank account.
The Age Pension was initially introduced in Australia in 1909 when the average life expectancy was below the eligibility age. It was thought that most people would not live long enough to receive it, and those that did would not get it for long.
Now Australia enjoys one of the highest average life expectancies in the world (significantly higher than USA and UK).
The pension was designed to provide income support to older Australians who meet age and income requirements.
It is funded by Australian taxpayers and it accounts for a huge and growing chunk of our national expenditure.
