Wills & estate planning is essential when protecting assets and ensuring proper distribution of assets in the future. We pride ourselves in providing expert advice through our extensive knowledge and experience within this area of law. We assist both clients based locally and internationally. Whether the estate is complex or simple, or should you have any concerns and needs, H & H Lawyers can assist you in any way.

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Jayne Nah

Jayne Nah

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Wills & Estate

Death of K-pop star, Goo Hara, reminds us the importance of having a valid Will

Anyone who is familiar with K-Pop news would have heard about the death of K-Pop singer Goo Hara, former member of Korean girl group Kara. Following her death, the sad childhood of the singer came into light due to a legal claim brought forward by the singer’s mother under the Korean Inheritance law. It was reported that Goo Hara’s mum abandoned her and her older brother when Goo Hara was only eight years old and never cared for them or contacted them since the abandonment.  It was reported that Goo Hara’s mother subsequently gave up her legal parental and custodial rights in relation to Goo Hara and her brother in 2006. Young Goo Hara was subsequently cared for by her older brother and her grandparents while her father was mostly away to work on construction sites in order to support the children financially. Goo Hara was 28 when she died and having never been married, she did not have any surviving spouse or any children. Under the Korean Inheritance Law, if you die without a valid will then the estate of the deceased will be distributed in the following order: Children (or grandchildren) Parents (or grandparents) Siblings Relative within the four degree of collateral consanguinity And if there is more than one person standing in the same rank then they share the estate equally. Since the death of Goo Hara, Goo Hara’s father has given his share of Goo Hara’s estate to Goo Hara’s brother stating that he always felt guilty not being there for the children to support them emotionally as he was away from home working to support the family financially and the children had to rely on each other during his absence. Currently, the singer’s mother has appointed a lawyer and filed a legal proceeding to claim her half share of the singer’s estate as the mother of the singer under the Korean Inheritance Law. The singer’s brother stated he is upset that the person who caused so much pain in his sister’s life now stands to benefit from her death and he vowed to defend his sister’s estate. You may think there is injustice being served here if the Korean legal system grants Goo Kara’s mother a share of the singer’s estate. But as the Korean Inheritance Law currently stands, unless there is a different way of defining a ‘mother‘ under the Korean Inheritance Law to exclude a mother who may have been absent from fulfilling a mother’s role during the deceased’s life, the Court must grant the mother the one half share of the singer’s estate. Similarly in NSW, when a person dies without a valid will in place, Succession Act 2006 (NSW) will determine how the deceased’s estate will be distributed. In NSW, distribution of the estate will generally go first to the surviving spouse, and if there is no surviving spouse then in the following order: Children Parents Brothers and sisters Grandparents Aunts and uncles Cousins The law does not take into account the type of relationship you had with your family members when distributing your estate after you die. The only thing the Court will consider is how you are legally related to the deceased. There are many similar cases in NSW. Recently there was a case in which a father, who was abusive and had a history of domestic violence, was issued with Apprehensive Violence Order (AVO) to prevent him from approaching the son in order to ensure the child’s safety. Soon after the Court’s AVO order, when the child was still very young, the mother divorced the child’s father and moved to Sydney. The child grew up and by the time the child reached his late twenties, having worked hard, he had accumulated wealth of his own. He maintained a close relationship with his mother, but did not have any form of relationship with his father. His father never contacted the family, and they lived separate lives. Later the child, still in his twenties, died suddenly from an accident. At the time of his death he was not married and did not have any children. The child, who was still young, never thought about having his estate planning in place and consequently did not have a valid will at the time of his death. The mother, in order to finalise her son’s estate, filed documents to the Court to be the administrator and the sole beneficiary of her son’s estate. The Court informed the mother that when a person dies without a will then law determines as to who the beneficiaries of the estate are. And in accordance with the Succession Act 2006 (NSW), as the deceased is not survived by a spouse or children, next in line to receive the deceased estate were the parents of the deceased. Therefore, both the father and the mother had to share equally in the late son’s estate. The mother was devastated by the fact that the father who was abusive to her son, who took no part in raising him and lived his life as a stranger to her son during her son’s life now stood to benefit from her son’s death. However, the law is clear on this matter. The distribution of the estate of an intestate must be in accordance with the law, and the law states that when a person dies and is not survived by any spouse or children then it is the parents of the deceased who are next in line to share in the estate of the deceased. The law does not look into the kind of relationship the parents had with the child. The fact that one is the parent of the child is the only qualification that is needed under the Succession Act. Every family has a different story and different relationship that is unique for that family. However, the law does not take any of these factors into account when it comes to distributing the estate of a deceased person who died without a valid will. The only way you can have certainty and control over what happens after you die is through having a valid will in place. Many will agree and recognise the importance of having a valid will in place, but for most this is easily pushed down to the bottom of their ‘to do’ list. However, as we currently experience a period of uncertainty and have more time to spend at home during this Coronavirus pandemic, maybe it is time to give some thought to estate planning to preclude some uncertainty and heartache for your family.  


Wills & Estate

Conditions of inheritance

Q: Recently, my mother passed away. Her will stated that, in addition to part of the mother's deposit, the house she owned would be handed over to me, but the condition of the inheritance was that I would "be baptised and become a Christian". During her life, my mother was a devout Christian, but I am not interested in any religion. Are these bequest conditions legally binding?   A: In short, it is likely that such conditions of inheritance will be legally acceptable. In particular, if the will specifies how the inheritance will be treated in the case that you do not satisfy the conditions, it will be more likely that such conditions are legally binding. Therefore, you need to examine your mother's will in detail. In principle, "freedom of will" is recognised in Australia so that a testator can freely decide who and how his or her estate will be inherited. Generally, if the conditions of an inheritance are 1) clear, 2) achievable, and 3) not contrary to public policy, the condition of the inheritance is considered valid.   There is a case held in 2014 before the NSW Supreme Court in 2014, Carolyn Margaret Hicken v Robyn Patricia Carroll & Ors (No2), in which the court discussed the validity of a condition that an heir needs to be baptized by the Catholic Church within three months of the death of his father.    The heir of course claimed that the above conditions were invalid. In particular, he argued that the condition was "inconsistent with public policy" because "it is religious discrimination, which creates discord within the family and also infringes universal human rights and freedom concepts". In response, the court ruled that "the condition does not force the heir to change his or her religion, and they are not contrary to public policy". In other words, the heir had the choice of converting and receiving an inheritance or keeping his or her own religion. In addition, it was held that the condition was clear and achievable. One of the major factors that led to such a decision was that the will specified who would inherit if the heir failed to meet the condition.   In the current matter, it will be determined that the mother's inheritance conditions do not oblige her child to be converted. However, even if he or she is unable to fulfil the conditions, and thereby the estate is to be inherited by others, it does not mean that the child cannot inherit anything. According to the Family Provision regime stipulated in the Succession Act 2006 (NSW), regardless of the content of the will, children of the deceased can claim inheritance rights for a part of heritage. Further details about the inheritance claim on Family Provision will be explained in the later article.


Wills & Estate

Executor's power / Funeral and burial method

Q: Recently my father passed away. My father's old friend is acting as an executor based on the will. Yesterday I had a quarrel in relation to what to do with my father's grave. I told him that my father mentioned a cremation, but he insisted that it would be best to bury him near the divorced mother's graveyard. The will is silent about funeral and burial methods. In this case, do I have any legal right? A: In general, the will of the deceased specifies the deceased's funeral and burial methods or requires the bereaved family to determine such methods. However, in rare cases, there are some situations in which the bereaved families fail to reach an agreement. If a will exists, the executor, in principle, has the right to decide on funeral and burial. It may seem surprising that the method of burial cannot be determined by words of the deceased, even if the deceased had written instructions in the will. The NSW Supreme Court set out the principles of funeral and burial in the case of Smith v Tamworth City Council held in 1997. Some of the key principles are summarized below. If the executor is designated in the will, the executor has the authority to manage the deceased's funeral and burial. The executor has no legal obligation to follow the instructions given in the will regarding the funeral and burial of the deceased. In the absence of a will, a person in the highest inheritance rank in accordance with the will has the same authority as the executor. If two or more persons have the same authority, the decision will be made in consideration of who can carry out the burial without delay. Anyone who has the authority to manage the burial is expected to consult with other stakeholders (e.g. surviving families and relatives) but has no legal obligation to do so. Even if it is not legally binding, it is necessary to convey your wishes to others around you, and to clearly write them in your will as well.


Wills & Estate

Wills and Family Provision

Q: I have three children, and I am going to write a will that leaves my second son with no heritage. However, I heard that there is a Family Provision regime in Australia, similar to the Japanese mortgage system, and it may not be possible to remove the inheritance of a child no matter how the will is drafted. How can I avoid these possibilities? A: The Family Provision states that "even if the will does not specify the right to inheritance, the deceased’s children and dependents have the right to inherit part of the estate." However, unlike the Japanese mortgage system, there is no clear distribution ratio, so it is necessary to determine what distribution is appropriate based on individual situations. In this regard, if an agreement is not reached at the consultation stage, the case would be brought before the court. In determining the Family Provision, the court takes into account various factors such as individual circumstances and common sense. Most of all, the Family Provision claim is likely to be accepted if the distribution of heritage described in the will is determined to be fair and equitable. In this regard, the reason why you do not want to leave an inheritance to the second son will be important. For instance, if you have reasons such as "I gave my second son a lot of money for my business" and "I gave him a down payment to buy a house,"the right of the second son to request the Family Provision is thought to be weaker. If there is such a reason, it is recommended that the reason be stated in a will or a separate sheet, and that it be preserved securely. In addition, the smaller the total estates, the less likely the court will be to recognize Family Provision claims. On the other hand, it is also possible to give the property to other children prematurely. However, it should be noted that non-cash gifts may give rise to a tax issue (including stamp duty). Also, when deciding how to distribute the Family Provision, prenatal gifts may be taken into account. Life insurance at the time of death is not a legacy and will be passed on to the designated recipient separately from the inheritance process. Also, for superannuation, if you specify the recipient, the designated person can receive it without it becoming part of the inheritance. You can take advantage of these, but as with prenatal gifts, they can also be factored into the Family Provision distribution. Ultimately, it is impossible to completely remove heirs who have Family Provision rights without objectively just and fair reasons.


Wills & Estate

Spouse passing away whilst separated – Inheritance and family provision

Q: I separated from my husband of 25 years. Between my husband and me, we have a son, now an adult, who is currently working. My husband and I thought it would be a temporary separation and did not divide our assets. The apartment I currently live in and an apartment that is an investment property in Tokyo is under my husband’s name. My husband passed away last week. He did not leave a will. When my ex-husband passed away, he was living with his girlfriend who has a child. In this case, what happens to the distribution of marital assets and the right to inheritance?   A: If the deceased and his girlfriend are legally recognised as de facto Partners, the girlfriend has the right to inherit the deceased's estate. According to the laws of NSW, if they have been living like a couple for more than two years, the relationship will be legally recognised as a de facto relationship. A person who claims the question of ‘have they lived together like a couple’ that has the duty to prove it. For example, each person has a dwelling, and if they only spend 2,3 days together, they cannot be considered to be a marriage relationship. In this case, assuming the girlfriend was in a marital relationship with the deceased, even if the cohabitation period was short, she has a right to inherit half of the deceased’s estate as mentioned under the Succession Act. The remaining inheritance will go to you. And subsequently in this case, your son does not have any inheritance rights.   You may feel that it is unfair that the girlfriend has a right to half the deceased’s estate when she has only lived with the deceased for a period of 3 years compared to your 25 years of marriage. If you disapprove of this result, you can claim a right under the Family Provision.  Family Provision refers to the right of succession of the deceased’s dependent family, not only the spouse but individuals that had a marriage-like relationship and those who have no kinship with the deceased (Dependent). This right cannot be revoked by a will. Therefore, your son can also claim this right. Additionally, if the step-child is dependent on the deceased, this right can be asserted. If the parties do not agree on the asset distribution, the court will ultimately decide to whom and to what extent the Family Provision will be granted by taking into account all relevant circumstances.  Subsequently, you do not have the right to distribute marital assets as the procedure of distribution was not completed before the deceased’s passing. Japanese laws apply to the inheritance of apartments that are in the name of the deceased in Japan. From what I understand, as Japan is family-oriented, no inheritance rights are available to those who are not family members and those who are not recognised. Therefore, under Japanese law, with regards to property in Japan, you and your son have 50% inheritance rights.


Wills & Estate

Remarriage of father and inheritance

Q: I have a father that will be turning 60 years old this year. My mother passed away 10 years ago. My father recently became close with a woman living in our neighbourhood and yesterday he asked me, “I am thinking of remarrying to this woman, what do you think?” With regards to my father remarrying, how would this affect my inheritance? A: As inheritance laws vary in each state, this column will focus on NSW inheritance laws. Generally, when you marry or remarry, the will that your father previously had is invalid. In other words, if your father remarries, and a new will is not drafted and he passes away, inheritance of any estate will be determined under inheritance laws. In this case, the person he remarries is entitled to more than half of the estate. However, even if the father refuses to marry this woman, if the two had been in an ‘internal relationship’ for a period of more than two years or the relationship was registered with the Relationship Register, even though they are not married, she has a right to inherit as a spouse. If the father, for example, states in the will “I leave 100% of my estate to my daughter”, the internal relationship is accepted as stated above and the woman reserves a right to claim some of the inheritance under the Family Provision (similar to Japanese inheritance law). In other words, depending on the will, the deceased may not be able to freely distribute the inheritance. Furthermore, if the father marries the woman or a close relationship is established, you cannot avoid the consequences of the inheritance. If your father and the woman have a child, your inheritance success rate will be even lower. If the woman has a child that has no blood relation with the father, lives with your father and is dependent on the family, then the child can also claim inheritance under the Family Provision.  Additionally, when your father passes away, anyone that has a “close personal relationship” with him has a claim under the Family Provision. However, it is ultimately up to the court to decide whether or not the claim is to be granted and to what extent. Another important note is that after your father has married the woman, and for example ends up with a condition such as dementia, loses his ability to judge or ends up in an accident (unless a power of attorney has been prepared), any medical decisions made by the remarried partner will take precedence over the children. In order to avoid any disputes, why not advise your father to create a power of attorney?