Medical science is keeping Australians alive longer than ever before. As the population ages, questions about mental capacity and the validity of estate planning documents are becoming more important — and more frequently litigated. At the centre of these questions is the legal concept of testamentary capacity: the standard a person must meet to make a valid Will.
Business owners typically choose their operating structure – sole trader, partnership, company, or family trust – based on tax efficiency, liability protection, or simply what their accountant recommended at the time the business began. Succession is rarely the first consideration, and yet the structure a business operates under has an enormous influence on what happens to it when an owner dies, becomes incapacitated, retires, or wishes to bring in the next generation. Revisiting whether the original structure still serves the business’s succession needs is one of the most valuable, and most neglected, exercises a business owner can undertake.
Superannuation is, for many Australians, their most significant financial asset. Yet it is also one of the most misunderstood aspects of estate planning. A common misconception is that your Will controls who receives your superannuation when you die. It does not. Your super sits outside your estate and is governed by an entirely separate legal framework — one that hinges on a critical document known as a Death Benefit Nomination.
Being appointed executor of a loved one’s estate carries a surprisingly personal risk: if you distribute the estate and an unknown debt later surfaces, you can be held personally liable for it. Fortunately, South Australian law provides executors with a well-established form of protection – advertising for creditors before distribution. This article explains what the process involves, why it matters, and how it fits into the broader timeline of administering a deceased estate.
For parents and carers of a person with a severe disability, the question of “what happens when I am no longer here?” can be one of the most anxious preoccupations of their lives. How will their loved one be cared for? Who will manage their affairs? Will a sudden inheritance disqualify them from means-tested government support? A Special Disability Trust (SDT) is a legal structure specifically designed to address these concerns, offering significant tax and social security advantages while providing a dedicated fund for a beneficiary’s care and accommodation needs.
Financial abuse of older Australians is more prevalent than most people realise, and its consequences can be devastating. An elderly person who has spent a lifetime accumulating assets may find those assets stripped away through manipulation, deception, or outright theft — often by someone they trusted completely. Understanding what elder financial abuse looks like, how it happens, and what the law provides by way of protection is a vital first step for every family.
Few events test the fabric of a family more severely than a dispute over a deceased person’s estate. Whether it arises from surprise, grievance, or a genuine sense of injustice, a challenge to a Will can be emotionally exhausting and financially costly. Yet the law recognises that there are circumstances in which such challenges are well-founded, and South Australia’s succession legislation provides clear pathways for eligible persons who believe they have been inadequately provided for or that a Will does not reflect the testator’s genuine intentions.
Trying to DIY the most important legal document in your life is a bad idea. This is a specialised area of law, and when you don’t know what you’re doing, it is very easy to make critical errors trying to do this yourself. Any mistakes you make won’t become apparent until you die, and it’s too late for you to fix them, so it will be your family who has the stress and cost of dealing with it all.
Here are 7 of the most common errors people make with DIY Wills:
Of the many aspects of estate planning that require careful attention,
one of the least discussed – and arguably the most emotionally charged – is the management of beneficiaries’ expectations. People often assume, sometimes with great confidence, that they know what a relative intends to leave them. When the Will reveals something different, the consequences can range from family tension to costly litigation.
Effective expectation management is not merely a matter of interpersonal diplomacy. It is an integral part of sound estate planning that can spare families years of grief and legal expense.
There is a tempting assumption that estate planning is something only the wealthy need to worry about, or conversely, that wealth itself ensures a smooth transfer of assets on death. Celebrity estate planning disasters emphatically disprove both propositions. The rich and famous are as capable of catastrophic estate planning failures as anyone else – and because their assets and family disputes tend to be played out in public, their mistakes offer instructive lessons for us all.
The following cases illustrate common estate planning failures and the principles that might have prevented them. All information in this article relates to Australian law under the Succession Act 2023 (SA) and its Commonwealth and common law equivalents.