Where There Is A Will There Is A Way

In NSW, since 2005, the disposal by the Supreme Court of disputes over wills has risen by almost 60%.

This increase is due to the Law under the Family Provisions Act, requiring the Court to consider the objective intentions of the deceased as at the date of death and not the actual intentions of the deceased.

The statistics are the tip of the iceberg. The statistics below show the cases disposed of by the court. Most matters, in the vicinity of 95% of all claims, are settled either by the parties or at mediation. These are not reflected in the statistics.

Where there is a will there is a way

The claims often irretrievably destroy family relations.

The increase can be seen to arise from the growth in blended families, with multiple children and grandchildren from second or even third marriages and defacto partners. For example, in a recent Supreme Court case 46 year old Robert Wilcox made a $1.1 million claim on his grandfather’s $5.5 million rural estate, which had been left to his mother.

Despite not having worked in agriculture since 2001, the court found he was entitled to some money and ordered he be paid $107,000 to clear a tax debt.

In the 2013 Supreme Court case, Jagoe v Maguire, John Jagoe brought a claim against the will of his late wife, who had left her $1.3 million estate to her four children from her first marriage.

The judgement by Justice Philip Hallen refers to family members abusing each other in court, bickering over a $10,000 Datsun and one beneficiary suffering mental illness attributed to “inter-family conflict and the siblings arguing”.

“Emotions during the cases were, understandably raw and painful,” he wrote.

“Hopefully, the termination of the proceedings by judgement will settle the hostility that has rocked the family since the death of the deceased.”

To avoid family disputes, planning your will thoroughly is essential. Please email sbrown@etiennelaw.com or phone 1300 832 032. For further information on Estate Planning and Wills please click here.

What Happens to your Facebook When You Die?

What Happens to your Facebook when you die

When one dies, property is dealt with under the terms of a Will or in default of a will by Letters of Administration (“Letters”) from the relevant Supreme Court of a State. Once the Court has granted Probate or Letters, the deceased’s Executor can deal with items of property, and in the event that all property is jointly owned (typically by a deceased and their spouse), the Executor will only need a certified Notice of Death to have the property dealt with.

In the context of a death, there remains the question of what happens with a deceased’s Facebook page.  A Facebook page with all its photo’s, communications and memories will remain.

Facebook has its own guidelines on what happens in the event of a person’s death, and these largely reflect the state of the law for personal property.  A Facebook page may be removed and all the data deleted at the request of a deceased’s Executor, and this requires production of the Certificate of Death and/or Grant of Probate. There is however, no Australian legislation that specifically addresses the question of such “digital assets” as Facebook.

Apart from wishing to remove a Facebook page in its entirety, an Executor may also wish to preserve the page but to close off any access to it.  The guidelines also deal with this, providing that where access is being sought to such pages, such access is strictly limited and often refused. Also a deceased’s person’s page may be “memorialised” where it cannot be logged into or changed in any way but where the page will remain and can be viewed.

There remains the question of whether Facebook’s guidelines and practices are sufficient in themselves or whether there is a need for statutory regulation.

In the USA a number of the states have or are considering introducing, legislation that will specifically deal with digital assets. In Virginia for instance an executor may obtain control over all Digital accounts, emails, social media, blogs and online text message services.

As Facebook’s guidelines currently stand there seem s no particular need for legislation in Australia. This does however beg the question of what other or similar digital assets currently exist or may come into existence in the near future.

Given that an Executor is meant to and should be, able to take control over all assets of a deceased, it would be desirable that they be specifically empowered to take over or to remove any such digital assets. This might be comprehensively dealt with by copying the legislation of Virginia or possibly and more easily with a short amendment to the State Succession legislation, that would specifically include all digital assets as property of an estate and therefore within the control of the Executor.

If you have any questions regarding wills, estate planning or probate please email jlucas@etiennelaw.com or phone 1300 882 032 for help.

David and Irena Brooks – Represent Australia in Canada

Congratulations to David and Irena Brooks on winning the Jupiters National Danceport Championship in Standard and New Vogue.

They will represent Australia at the World Dancesport Senior II Standard Championships in Vancouver Canada this November.

We are very proud of all their hard work and celebrate their wonderful success with them.

Why Planning and Consideration are Important When Writing a Will

Why Planning for your will is important

The Supreme Court of Western Australia recently handed down its decision in the case Ioppolo & Hesford v Conti. The case illustrates the importance for will makers to take proper legal advice when dealing with their estate and assets that they have an interest in but which they do not legally control. An example of such a situation would be attempting to bequeath entitlements in a self-managed superannuation fund (SMSF) pursuant to a will.


Mrs Conti and her husband established a SMSF in 2002. Mrs Conti and her husband were the only members of the fund and Mrs Conti made a Will on 13 January 2005. Mrs Conti attempted to give her entitlements of her membership of the SMSF to her children. She specifically stated in her Will that she did not want any entitlements to be paid to her husband. By the time of her death on 5 August 2011, Mrs Conti had not made a binding written direction to the trustee of the SMSF, directing where to pay her SMSF entitlements. The sole remaining trustee of the SMSF was her husband. 

Following the death of Mrs Conti, the husband remained the sole trustee of the SMSF. Mr Conti exercised his powers under the terms of the SMSF and a new trustee company was appointed the sole trustee of the SMSF. Mr Conti was the sole shareholder and director of the new trustee company (Augusto Investments Pty Ltd). Augusto Investments Pty Ltd then resolved to pay the whole of Mrs Conti’s death benefit to Mr Conti in accordance with the rules of the SMSF. 

The executors of Mrs Conti’s estate filed proceedings with the Court seeking relief on 4 main points that:

  • Mr Conti was obliged to appoint one of the executors of Mrs Conti’s estate as a trustee of the SMSF;
  • Mr Conti – as sole remaining trustee of the SMSF – did not exercise his discretion in a bone fide manner as required by the SMSF deed
  • The Executor be appointed as a trustee of the SMSF; and
  • The Court should review the discretion exercised by Mr Conti in his capacity as sole remaining trustee of the SMSF.

The Court held that the sole surviving trustee of the SMSF was entitled to ignore the direction contained in the Will. The Trustees not being in anyway bound by the direction in a member’s Will.  The Executors claims were dismissed.


The case illustrates the importance for will makers to consider all aspects of their estate planning when preparing their Will. In particular what assets they have the power to deal with in their Will and to consider what legal steps they need to take to deal with other interests such as those in SMSF’s, trusts, assets within a company, or superannuation funds controlled by retail managers. Will makers should consider seeking professional legal advice.

When writing your will you need to know which assets can be dealt with inside the will. It is a complex area and needs professional advice. By not dealing with the assets correctly in the will your wishes will not be fulfilled. Call Etienne Lawyers today on 1300 882 032 for an expert opinion on your will. www.etiennelaw.com


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Etienne Lawyers in association with Davis and King

Etienne Lawyers is now associated with Davis and King.

The firm of Davis and King is now back. Ted Davis and Roddon King are now working together with Etienne Lawyers.

‘You can still pick Ted’s brain’

Please Pick Out Brains

Etienne Lawyers (in association with Davis & King) are delighted to welcome Ted Davis and Rodon King and genuinely want you to ‘pick their brains’.

Ted is bringing his exceptional experience in Negotiation and Litigation to the Etienne Lawyers Office.

His knowledge of mining, media, property development, transport and HR are unsurpassed and you are the winners.

Rodon King, Ted’s original partner brings a wealth of experience in trade practices, airline law, transport and high quality commercial work.

Etienne Lawyers are a dynamic team who are proactive and welcome Ted and Rodon’s expertise and enthusiasm.

Why not renew the acquaintance and contact Ted or Rodon now on 1300 882 032.