Wills, Estates and Beneficiary Rights – Part 1
April 19, 2023
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Is there a ‘reading of the will’?
A very common question I hear from family members of a deceased is “when is the reading of the Will”.
The answer is… “there is no requirement for a ‘reading of the Will’ in Australia”.
Sadly, most of us are guilty of watching too much American TV. We are constantly exposed to images of lawyers theatrically walking around court rooms eyeballing jurors and hearing about “the reading of Wills” where TV characters die. The reality is, our Australian legal system is quite different from American TV yet most of us seem to know more about the American legal system than we do about our own.
In Australia, an executor simply needs to notify a beneficiary of their entitlements under a Will upon the issue of a Grant of Probate. It is common practice for the executor to also provide them with a copy of the Grant (which attaches a copy of the Will).
Are you a beneficiary?
Often individuals want to know as soon as possible whether they are a beneficiary of an Estate, and before a Grant of Probate is made.
If you are unsure whether you are a beneficiary of an estate and want to check the Will, here are some of your options:
- If you know who the executor of the Will is, you can approach them and ask for a copy of the Will.
- If the executor is unwilling to provide you with a copy, or you do not know who the executor is, then you are entitled (in return for a small fee) to obtain a copy of the Will from the Supreme Court Probate Registry of WA (if it has been presented to the Probate Registry by the executor).
- If you believe the wrong Will has been or is going to be submitted into Probate by the executor, then you should obtain legal advice immediately. You may need to lodge a probate caveat to protect your interests in the estate.
What if you are unhappy about the provision, or lack of provision, the deceased has made for you in their Will?
Often disputes regarding the division and distribution of an estate can be resolved amicably between parties without the need to commence any Court proceedings.
However, at times, where one or both parties are unwilling to negotiate or simply cannot reach a resolution, disgruntled beneficiaries are often left with no choice but to commence legal action against the Estate pursuant to the Family Provision Act(WA) 1972. More on this in Part 2 of this series.
If you believe that you have not been adequately provided for out of a deceased estate, or you require assistance with defending your position as a beneficiary of an estate because someone is challenging your entitlements, the lawyers at Bailiwick Legal can help. To find out more, phone us at 9321 5451.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
How does the Annual Wage Review affect workers and small business owners? Each year, the Fair Work Commission reviews the National Minimum Wage and the minimum wages set out in awards. Cost of living and inflation are front of mind for both employers and employees, and this year’s Annual Wage Review is likely to see an increase in the minimum wage and award rates. The Annual Wage Review is conducted by an Expert Panel, which takes submissions from interested groups, including the Federal Government, unions, and business lobby groups. The Federal Government’s submission to the Wage Review this year called for an increase to the minimum wage, though not specifying an amount. The Australian Chamber of Commerce and Industry has advocated for an increase of 2 per cent, at most. The announcement will likely take place in early June and any increase to the national minimum wage will take effect in the first full pay period on or after 1 July 2024. Failure to pay employees at least the minimum rate that is set out in an applicable award can result in penalties, including requirements for back pay and fines. The Fair Work Ombudsman uses its enforcement powers to issue compliance notices to employers, and recovered $14.8 million in unpaid wages in 2022-23. Small and medium businesses are subject to the same scrutiny as large businesses. For business owners, this is a timely reminder to review employment agreements and payments to staff. You should be conscious of which awards cover your staff members, as award rates for each level increase commensurate with the national minimum wage increase. It is also important to be aware of employee entitlements and set-offs, to ensure you are paying employees what they’re entitled to and avoiding future claims. If you are not sure what award your employee is covered by, have a question about employment conditions or require any other assistance with employment and workplace matters contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au . By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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