After I pass away, will my assets still go to my children if my partner re-marries?

Having worked with numerous clients on wills and guardianship cases, Nas Hanafi is familiar with the particulars of these legal situations and knows what steps need to be taken so that clients can successfully pass on their material possessions to the intended recipients.

Drafting a Will might not always represent the client’s intentions completely, so it is essential to work with a professional solicitor who can cater for the needs of the Will’s author and the intended beneficiaries.

A common example is when a married beneficiary mentioned in the Will receives assets, but then he or she passes away after the testator. In this case, the surviving spouse may be able to receive the assets. Should the surviving spouse get married again, then the new partner of the surviving spouse could receive the assets before the grandchildren do. This might not be what the initial testator had in mind!

An effective way of preventing such situations from occurring is by implementing a testamentary trust into the Will. With this trust, you can seek to ensure that, after you pass away, your assets will go exclusively to your children and grandchildren, without including their spouses or their spouses’ new partners. Nas Hanafi has successfully implemented many testamentary trusts and can offer you professional guidance in this regard.

To contact Nas Hanafi from Lion Legal, please call (02) 9251 2722.

What are the types of Assault?

Assault can fall into the following three categories: assault, common assault and assault occasioning actual bodily harm (ABH).

Common assault prosecuted by indictment

Should someone commit an assault on any person, he or she can be convicted and sentenced for up to 2 years imprisonment, even if the person did not suffer from any actual bodily harm as a result of the attack.

The description of ABH, as well as its legal repercussions and penalties are governed by Section 59 of the Crimes Act of 1900.

 

Assault causing actual bodily harm

1) Should someone commit assault on anyone and thus cause ABH can be convicted and sentenced to up to five years imprisonment;

2) An individual will be found guilty of this offence if this individual causes the actual bodily harm in subsection (1) accompanied by one or more other persons can sentenced for up to seven years imprisonment.

Passing away without a will. What does this mean for your spouse?

Every year, many individuals have passed away without a Will i.e. “Interstate” – a legal term where an individual who has passed away without a Will.

On intestacy, a ‘spouse’ is entitled to the personal effects of the deceased, a statutory legacy and one-half remainder (if any) of the estate: Succession Act 2006 (NSW) s 113. The deceased’s children share equally in the remaining half of the residual of the estate.

To be considered as a ‘spouse’, you must fall under the definition of ‘spouse’ in s 104 of the Succession Act 2006 (NSW).

A statutory legacy consists of the CPI adjusted legacy. The CPI adjusted legacy is to be determined by the following formula:

Consumer Price Index number for the last quarter

CPI adjusted legacy =        __________________________________________                x $350,000

Consumer Price Index number for the December 2005 quarter

 

 

If the estate is not sufficient, then the statutory legacy will abate to what is the remainder from the estate.

The spouse’s statutory legacy makes it clear that the spouse has priority in the intestacy laws.

Superannuation

If the superannuation falls within the statutory legacy it may not be available for of distribution. It depends on the terms of the superannuation fund and what instructions the deceased may have provided. The super fund’s trustee may be able to shed some light on this.

There is no guarantee that making an application to the superannuation fund will result in you receiving a share of the deceased superannuation. The trustee of a super fund generally has discretion as to distribution in the absence of a nomination by the deceased. However, by making an application to the superannuation fund you place yourself in a better position to receive a share if one is forthcoming.

 

If you have any questions or require any information in relation to the above, please feel free to give Nas (Nasir) Hanafi from Lion Legal a call on (02) 9251 2722.

Which other documents are considered part of a will?

In some circumstances, a party might claim that the will of the deceased is not the only relevant legal document that represents the deceased’s intentions. Nas Hanafi explains what documents New South Wales legislation accepts as valid additions to the will.

According to Section 8 of the Succession Act 2006, the Court can change the way in which a Will is interpreted. This may happen under the following circumstances:

1.  When the legal document

a) represents the intentions of the deceased; but

b) was not executed or was executed incorrectly; and

2. The document encompasses:

a) the will of the deceased person – if the Court agrees that the deceased wanted to write their will, or

b) a change in the will of the deceased – if the Court agrees that the deceased wanted to make a modification to their will, or

c) a complete or partial cancellation of the will – if the Court agrees that the deceased wanted to make a complete or partial cancellation to their will.

 

When reaching a conclusion under subsection (2), the Court is allowed to consider several other aspects aside from the document:

a) any proof that refers to the means by which the document was put into effect; and

b) any proof that refers to the directives of the deceased person, including proof of declarations of the deceased person.

For more information on the above-mentioned situation, you can contact Nas Hanafi of Lion Legal on (02) 9251 2722.