In Brief

Estate plan­ning is not some­thing we gen­er­al­ly think about as we go about lead­ing our busy lives. But what many of us fail to see is that neglect­ing to car­ry out this process could have seri­ous ram­i­fi­ca­tions for our fam­i­lies and their futures. 

Hav­ing prop­er­ly con­sid­ered and draft­ed estate plan­ning doc­u­ments in place presents a range of sig­nif­i­cant ben­e­fits for you. For exam­ple, sol­id estate plan­ning reduces the pos­si­bil­i­ty of dis­putes over estates, min­imis­es the amount of tax paid by the estate’s ben­e­fi­cia­ries and avoids unnec­es­sary delays, expens­es and uncer­tain­ty in the dis­tri­b­u­tion of the estate’s assets.

Below are some cas­es we have wit­nessed when peo­ple have failed to put the right plans in place.


Rules of Intestacy

A hus­band and wife own a medi­um sized fam­i­ly busi­ness. They have four chil­dren, two sons who work for the busi­ness, who work for less than mar­ket pay and the promise of inher­it­ing the busi­ness, and two daugh­ters who do not have any ties to the fam­i­ly business.

The par­ents die unex­pect­ed­ly and it’s dis­cov­ered that they had not includ­ed the two sons as suc­ces­sors to their busi­ness in the case of death in their will. The sis­ters now want to sell their share of the busi­ness, with the sons hav­ing no real legal right to con­test. The sis­ters sell their share of the busi­ness to a third par­ty, mean­ing the busi­ness is no longer sole­ly owned by the fam­i­ly. The cir­cum­stances caused a fam­i­ly rift with the sib­lings no longer talk­ing and the sons left to work with the new busi­ness part­ners to work out remu­ner­a­tion struc­tures and cor­po­rate gov­er­nance structures.

Inad­e­quate Will

A hus­band, wife and their son are in a car acci­dent, the par­ents don’t sur­vive and the son is left men­tal­ly dis­abled as a result of the injuries he sus­tained. Upon the parent’s death, all assets are trans­ferred direct­ly to the son, with no trust in place.

As the assets from the will are legal­ly gift­ed to the son in his own name, the son los­es his rights to Cen­tre­link dis­abil­i­ty ben­e­fits and his health care card.

The son is then befriend­ed by his car­er who con­vinces him to trans­fer the assets to her to take care of and he is left with nothing.

If the par­ents of the son had put in place a tes­ta­men­tary trust, it would have mit­i­gat­ed the risk of the son being left with noth­ing. The assets would have been man­aged appro­pri­ate­ly and allowed the son to live as com­fort­able a life as his cir­cum­stances would allow and would have also per­mit­ted him to have access to health and Cen­tre­link benefits.

Change of Circumstances

A man and woman had been mar­ried for 20 years. Dur­ing their mar­riage they had each writ­ten valid wills and put in place endur­ing guardians and endur­ing pow­er of attor­neys, each appoint­ing the oth­er as their attor­ney and endur­ing guardian. The cou­ple decid­ed to legal­ly sep­a­rate and short­ly after the wife fell ill.

The cou­ple had not amend­ed their wills upon their sep­a­ra­tion so the hus­band was still the legal endur­ing guardian and endur­ing pow­er of attor­ney of the wife. Despite no longer being mar­ried, the estranged hus­band had com­plete con­trol of the deci­sions made on behalf of his estranged wife, includ­ing not only finan­cial deci­sions but also deci­sions to be made about the med­ical treat­ment of his estranged wife.

For fur­ther infor­ma­tion please contact:

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Assess­ing Scope 3 Emis­sions: An analy­sis of the impli­ca­tions of Den­man Aberdeen Muswell­brook Scone Healthy Envi­ron­ment Group Inc v MACH Ener­gy Aus­tralia Pty Ltd [2025] NSW­CA 163 (the Mount Pleas­ant decision)

Intro­duc­tionOn July 24, 2025, the New South Wales Court of Appeal (NSW­CA) deliv­ered a land­mark rul­ing in Den­man Aberdeen Muswell­brook Scone…

Work­place Rela­tion­ships: The Legal Posi­tion (Cold­play Con­cert Edition)

The recent sto­ry of col­leagues (a Chief Exec­u­tive Offi­cer and Chief Peo­ple Offi­cer (CPO)) whose appar­ent rela­tion­ship was cap­tured on…

Dis­missal for Dissent?

The recent unfair dis­missal deci­sion of the Fair Work Com­mis­sion, Shaun Turn­er v Dare­bin City Coun­cil [2025] FWC 1763, in which Deputy…

In the News

Michael Byrnes is quot­ed in the arti­cle, Employ­ee award­ed $305k in record sex­u­al harass­ment pay­out”, pub­lished in HRM Online on 12 August 2025

Michael Byrnes is quot­ed in the arti­cle, ​“Employ­ee award­ed $305k in record sex­u­al harass­ment pay­out”, pub­lished in HRM Online on…

Michael Byrnes appeared on Mon­ey News with Evan Lucas on 2GB on 4 August 2025 to dis­cuss the pro­posed Vic­to­ri­an state gov­ern­ment work from home laws

Michael Byrnes appeared on Mon­ey News with Evan Lucas on 2GB on 4 August 2025 to dis­cuss the pro­posed Vic­to­ri­an state gov­ern­ment…

Julie Briscoe attend­ed an event last night host­ed by NSW Gov­er­nor Mar­garet Bea­z­ley, cel­e­brat­ing Tour de Cure’s sup­port for world-class can­cer research breakthroughs.

Her Excel­len­cy the Hon­ourable Mar­garet Bea­z­ley AC KC, Gov­er­nor of New South Wales, and patron of Tour de Cure, host­ed…

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