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  • Power of Attorney Amendment Act 2013 (NSW)
    principal of substitute attorneys persons who may act as attorney under the Power of Attorney during certain vacancies in the office of a specified attorney b to replace the prescribed form for a Power of Attorney from the Principal Act and propose such forms as prescribed by the regulations made under the Principal Act c to provide the Guardianship Tribunal the authority to determine disputes relating to the revocation of a Power of Attorney formerly a function of the Supreme Court and d to make other amendments as necessary and insert savings and transitional provisions Following are the amendments to the Power of Attorney Act 2003 made by the new legislation a the first amendment is the single Power of Attorney form which is currently used and is replaced by two forms which will cover i Powers of Attorney containing general powers and ii Powers of Attorney containing enduring powers b the second amendment is Section 46 of the Power of Attorney Act 2003 wherein if attorneys are appointed to act jointly the power will terminate on the death of either one of them and c the final amendment is to confer power to the Guardianship Tribunal in order to determine disputes involving revocation of a Power of Attorney The impact of these changes on persons with intentions of creating a power of attorney is that they need to be cognisant of the need to use a new form when preparing it It would be worthwhile bringing this to the attention of your lawyer before creating it so as to ensure that your power of attorney is valid from the outset Furthermore it will be less cumbersome and expensive to lodge proceedings in the Guardianship Tribunal than it was in the Supreme Court for the purpose of revoking a power

    Original URL path: http://www.kyliemaxwell.com.au/power-of-attorney-amendment-act-2013-nsw/ (2014-01-05)
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  • Can a provision in a Will be a valid death benefit nomination?
    trust deed governing the fund may provide that a direction that is given by the Willmaker to the trustee of the superannuation fund is a valid direction instructing the trustee to direct the death benefit to a particular person or class of persons In the case it is confirmed that the particular provision of the Will in question which left a bequest to the complainant was not a direction in the form required to direct the trustee of the fund how to apply the death benefit after the deceased s death However the case stands as an authority for the fact that a solicitor that has an eye on the terms of the trust deed applicable to the superannuation fund can craft the terms of a client s Will to take the form of a valid death benefit nomination Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe to our FREE Newsletter indicates required Email Address First Name Connect with Us Recent Posts New Charity Definition at Law Commences Operation Today Financial Report of Charities Clarified Private Ancillary Funds and Others Benefit from Privacy on ACNC Register Governance

    Original URL path: http://www.kyliemaxwell.com.au/can-a-provision-in-a-will-be-a-valid-death-benefit-nomination/ (2014-01-05)
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  • When is a professional executor and fiduciary entitled to remuneration?
    adviser for about 20 years He paid himself 219 750 for his executorial duties a sum described by White J as an enormous amount of money for an executor charge White J derived general principles from this case 1 Generally an executor isn t entitled to remuneration for carrying out executorial functions except to the extent that the Court allows the executor commission 2 Generally an executor is expected to carry out his or her duties personally 3 As a result if he or she chooses to employ another person to carry out executorial tasks the charges will be to his or her own account 4 Where having regard to the size of the estate and tasks that need to be carried out it is reasonable for the executor to engage the services of another the expense may be allowed as a disbursement 5 However even where the executor is entitled to incur an expense and charge it to the estate an executor who is professional is not entitled to charge for his or her services if he or she does such work 6 The prohibition referred to in number 5 also prevents the executor engaging for remuneration a firm of which he or she is a member if he or she would thereby benefit directly or indirectly 7 On the other hand the court may allow commission at a rate or in an amount that reflects work done by the executor that required the exercise of a professional skill 8 The general principles do not apply where the will provides otherwise charging clauses 9 There are two types of charging clauses those that direct that the executor receive a particular remuneration and those that allow the executor to charge for his services Office 61 2 9889 2881 Mobile 61

    Original URL path: http://www.kyliemaxwell.com.au/when-is-a-professional-executor-and-fiduciary-entitled-to-remuneration/ (2014-01-05)
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  • Are you rushing your relatives into a new Will?
    New South Wales Whether the deceased had capacity to make the second Will It was established that The Guardianship Board of South Australia noted that the protected person shall not make any Will or other testamentary disposition after this date except in the presence of and with the consent of the Public Trustee Macready AsJ concluded that an order by the South Australian Board to give its order full force and effect throughout Australia In reaching the decision Macready AsJ was mindful of the basic propositions put forward by Callinan J in Sweedman v Transport Accident Commission whereby the legislation of one Australian state may have legal consequences for persons in others but that the polity of a state will have the primary responsibility for and hegemony over the people institutions lands and activities within its boundaries This means that the terms of the order from the South Australian Guardianship Board is clear that the making of the deceased s second Will has no effect On the second point the psychiatrist who was present at the making of the second Will had no knowledge of the prior medical records of the Willmaker and was making their assessment as is It was evident that the Willmaker lacked testamentary capacity to make the latest Will if all medical records were considered An opinion from a psychiatrist or other doctor able to attest to the person s capacity should be an opinion from someone who has medically treated the person for a long time or the longest time and preferably someone who was able to comment on how that person was at the date of signing their previous Will as compared with how they are on signing the new Will This will not always be possible but relatives should not think that having

    Original URL path: http://www.kyliemaxwell.com.au/are-you-rushing-your-relatives-into-a-new-will/ (2014-01-05)
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  • Benefits of good record keeping by attorneys
    Mr Dickman as her attorney under a power of attorney Mrs Simpson had bequeathed her estate to Mr Dickman in return for him continuing to see her and keep managing her finances Neighbours and friends of Mrs Simpson ie Mr Nicholson and Mr Jeskie were concerned that Mr Dickman may have been overly friendly with Mrs Simpson for financial gain purposes Discussions even ensued between them as to how to obtain an apprehended violence order against him They proceeded to have the Will and Power of Attorney of Mrs Simpson changed in September 1999 leaving the estate to the Salvation Army and Mr Jeskie and Mr Nicholson being the new attorneys under the new power of attorney On 14 September 1999 she made a Will that after revoking prior Wills appointed the financial secretary of the Salvation Army NSW Property Trust Mr Holley as her executor and gave the whole of her estate to the Salvation Army Eastern Australian Territory for the use and benefit of the Elizabeth Jenkins Place aged care facility Justice White discussed undue influence and knowledge and approval and referred to the case of Vernon v Watson saying that although relevant parties had no benefit from the estate the management of the organisation had suggested to the elderly lady that her place in the home was in jeopardy because of non payment of fees bringing into play what is known as the doctrine of suspicious circumstances Justice White also stated that the elderly lady had shown that she was amenable to signing any documents that were placed in front of her On this basis and on the basis that Mr Dickman was able to show that he had deeply cared for Mrs Simpson by alluding to diarised aspects of her life and general health and wellbeing

    Original URL path: http://www.kyliemaxwell.com.au/benefits-of-good-record-keeping-by-attorneys/ (2014-01-05)
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  • Superannuation Funds: Legal Personal Representatives Not Necessarily Your Solicitor
    they wish to distribute the superannuation funds in accordance with the terms of their Will they specify in their binding nomination that their legal personal representative should be the person receiving those funds Some of my clients look at me as though nonplussed when I mention this I am not suggesting that my clients should direct their superannuation funds to me when I make this suggestion The Will maker s legal personal representative is at all times the person or persons whom you have appointed as your Executor under your Will By having the funds transferred to him her or them you are directing that they distribute it in accordance with the directions in your Will with respect to the rest of your assets in your estate That is not to say that the legal personal representative may not be me or in another case the Will maker s solicitor However strict rules apply under the NSW Solicitors Rules about me or other solicitors preparing Wills for clients where I or they are made the Executors of your estate In short Rule 11 1 provides that if I do so I must explain to you about my entitlement to claim a commission as Executor point then to any specific provisions that I have included in your Will that specifies my entitlement or my firm s entitlement to be paid professional fees and explain that a person may be appointed as Executor who may make no claim for commission Rule 11 2 of the Solicitors Rules states that if I was to be named in the Will as a person receiving more than a commission as an Executor and more than just receiving professional fees but going further to award me a further substantial benefit then I must decline to prepare

    Original URL path: http://www.kyliemaxwell.com.au/superannuation-funds-legal-personal-representatives-not-necessarily-your-solicitor/ (2014-01-05)
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  • NSW Provision Allows Property to Pass But Still Be Part of First Estate
    Part of First Estate Section 82 of the Succession Act 2006 NSW overcomes a problem that arose with a former section of family provision legislation to enable a Court to order that property that has passed from an original owner to a person who then dies the transferee be made available to persons entitled in the original owner s estate If immediately before the transferee s death the Court could have made a notional estate order and a grant has been given in respect of the transferee s estate then the Court will be able to make that estate available to the original owner s descendants There is no corresponding provision in legislation of the other States and Territories of Australia in respect of this matter Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe to our FREE Newsletter indicates required Email Address First Name Connect with Us Recent Posts New Charity Definition at Law Commences Operation Today Financial Report of Charities Clarified Private Ancillary Funds and Others Benefit from Privacy on ACNC Register Governance Standards Now Applicable to Charities Charities Commission Regulates the Charities Nonprofits Sector Contact

    Original URL path: http://www.kyliemaxwell.com.au/nsw-provision-allows-property-to-pass-but-still-be-part-of-first-estate/ (2014-01-05)
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  • Social Media and Digital Wills: Laws of the Future?
    that enables a person to enter all of the details of their online passwords for storage on a secure server only to be released when their Executor proves they have the authority to access them In Australia no laws have been passed to enable anyone to access the account information of a deceased person s social media sites or other online services The laws would pose difficulty in the area of privacy laws but would also breach conditions of use for sites such as Facebook which at condition 4 8 provides You will not share your password or in the case of developers your secret key let anyone else access your account or do anything else that might jeopardize the security of your account Further condition 4 9 reads You will not transfer your account including any Page or application you administer to anyone without first getting our written permission Perhaps this will be the subject of future calls for comment from the public by the NSW Trustee and Guardian Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe to our FREE Newsletter indicates required Email Address First

    Original URL path: http://www.kyliemaxwell.com.au/social-media-and-digital-wills-laws-of-the-future/ (2014-01-05)
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