But making a Will does not have to be boring. It can be an opportunity to reflect your personality, your relationships and the things that matter most to you.

Some people have certainly embraced that idea:

• Englishman Roger Brown left part of his fortune to seven friends, on the condition that they use it for an alcohol-filled weekend in a European city.
• Singer Janis Joplin left US$2,500 for her friends to throw a wake in her memory.
• Marvel Comics editor Mark Gruenwald requested that his ashes be mixed with ink and used to print comic books.
• Pringles inventor, Fred Bauer, reportedly wished to be buried in a Pringles can.

While these wishes may be unusual, they demonstrate that a Will can be about more than simply dividing up your assets. It can be an opportunity to recognise the people who are important to you and communicate the wishes that matter most to you.

But there is an important catch: creativity cannot come at the expense of validity.

A Will is a legal document, and your wishes need to be expressed clearly and in accordance with the law. An unusual or complicated request that is unclear or legally ineffective may create uncertainty for your executor and beneficiaries and potentially lead to disputes.

Any gifts expressed with a condition should be carefully considered in light of legal advice to understand whether such condition is legally enforceable.

If you wish to leave an unconventional gift in your Will or include particular instructions, there are several ways you can do so.

Memorandum of Wishes

A Memorandum of Wishes is a non-binding document that accompanies a Will and provides additional guidance to your executor and trustees.

Unlike a Will, it is not legally enforceable. This means you can use it to express your feelings, thoughts, reasoning or wishes regarding the provisions of your Will or the administration of your estate, without creating additional legally binding obligations.

A Memorandum of Wishes can therefore be a useful way to provide further context or guidance to your executor or trustees. For example, you may wish to:

• detail your wishes for your funeral;
• explain how you would like your beneficiaries to use their inheritance;
• provide guidance to the guardians of your minor children about how you would like your children to be raised; or,
• leave non-binding instructions regarding the care or ownership of your pets.

Including these directions in a Memorandum of Wishes allows you to communicate your expectations while keeping them separate from the legally binding provisions of your Will.

Conditional Gifts

You may wish to leave a conditional gift in your Will. This is a gift that is subject to a specified condition.

There are two types of conditions gifts:

• Conditional precedent: an event or action must occur before the beneficiary becomes entitled to the gift; and
• Conditional subsequent: the beneficiary receives the gift, but their entitlement will come to an end if a specified event occurs.

While conditional gifts can provide a way to reflect specific wishes, they must be carefully drafted. A condition may be ineffective if it is uncertain, impossible to fulfil or contrary to public policy.

The consequences can also differ depending on the type of condition. If a condition precedent is invalid, the gift may fail and form part of the residuary estate instead. If a condition subsequent is invalid, the gift may take effect without the condition needing to be satisfied.

Examples of Conditional Gifts

Courts in Australia have considered several unusual conditional gifts, demonstrating why careful drafting is important.

In the NSW Supreme Court case of Hickin v Carroll & Ors [2014], a gift was made conditional upon the Willmaker’s adult children converting to a particular religion within three months of his death. Whether the condition was against public policy was a contested matter. However, the Supreme Court deemed that restraining someone’s religion is only contrary to public policy if it limits the parental right to raise a child in a specific faith. Because the condition was held to be valid, the beneficiaries lost their gifts when they failed to comply.

An example of a failed condition subsequent gift occurred in the case of Hibbit v Ziade [2022] which concerned a gift of a residence and its contents to beneficiaries “in return for caring for my two cats”. It was argued that the beneficiaries would not receive the gift until the cats had died. The Court rejected that interpretation and found that the gift vested immediately, avoiding the practical difficulties that a deferred gift would have created.

These cases demonstrate that while conditional gifts can be an effective way of expressing testamentary wishes, the wording and practical effect of a condition matter. What may seem straightforward when written into a Will can become considerably more complicated when its meaning is tested after death.

Make it Personal – But make Sure it Works

Making a Will does not need to be a daunting or purely practical exercise. Whether your wishes are traditional, sentimental or a little unconventional, your Will gives you an opportunity to communicate what matters to you and make your wishes known.

The important thing is to make sure those wishes are expressed clearly and legally effectively.

Contact us to discuss all your wishes and how to put them into effect.

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AI can generate what appears to be a straightforward Will, identifying beneficiaries, appointing an executor and setting out how your estate should be distributed. However, a Will is more than a document that records your wishes. It is a legal document that must satisfy specific requirements to operate effectively after your death.

How to effectively utilise AI when preparing your Will

There is nothing inherently wrong with using AI as a starting point when considering your estate plan. AI can help you identify questions you may wish to discuss with a lawyer, organise information about your assets and family circumstances, or help understand some of the terminology involved in estate planning.

The risk arises when an AI-generated document is treated as a substitute for tailored legal advice. Your family circumstances, assets and wishes are unique. A properly prepared Will should take these circumstances into account and ensure your wishes are expressed in a way that is legally effective.

An AI model may not consider all of the potential legal issues associated with your Will, including:

• Taxation issues and how your Will can best be structured for tax-effectiveness, including the use of discretionary testamentary trusts;
• Asset protection concerns for you and your family;
• Particular circumstances that may require a tailored approach for a specific beneficiary, such as disability or being in receipt of an asset-tested pension; or
• Risks associated with excluding any beneficiary from your Will.

There is also a risk with any homemade Wills that they will not be executed correctly to meet the requirements of the Wills Act. This can lead to issues with proving valid execution to the Probate Office (meaning more time and expense for your Executors), and even a risk that a Will is found to be invalid in its entirety.

What happens when a Will is found to be invalid?

If a Will is found to be invalid, and you have no prior valid Will, your estate will instead be administered under the laws of intestacy, governed by the Administration and Probate Act. This means your assets will be distributed according to statutory provisions rather than the wishes you intended to express.

The courts have considered the validity of Wills in circumstances involving digital documents. For example, in the case of Peek v Wheatley [2025] the Court invalidated the deceased’s Will on the basis that its digital format did not reflect a definitive testamentary intention to act as a Will, but rather reflected a preparatory step in the process.

This case highlights an important point: creating a document that looks like a Will is not necessarily the same as creating a legally effective Will.

The financial costs of an AI-generated Will

One of the reasons people turn to AI tools is to avoid the cost of obtaining professional legal advice. However, the initial saving may not reflect the potential cost of problems arising later.

While an AI-generated Will may cost little or nothing to prepare, questions about its validity or interpretation can result in significant legal costs for your estate. This may include the cost of obtaining legal advice, gathering evidence, interpreting the document and, where necessary, making an application to the Court for a ruling on its proper meaning.

There may also be financial consequences associated in delays in administering the estate. Beneficiaries may have to wait longer before assets can be transferred or distributed, while property or other estate assets may remain unresolved while the legal position is determined.

The cost of a Will should therefore not be measured only by what it costs to prepare, but also by the consequences if it does not operate as intended.

The time, stress and administration for your loved ones

An AI-generated Will may appear appealing because it can be prepared quickly and from the comfort of your own home. However, the convenience of creating the document may shift the burden onto your loved ones after your death.

If a person dies without a valid Will, their estate may need to be administered under the intestacy provisions. This may mean that their assets may be distributed to people who were not their intended beneficiaries, which can lead to disharmony within the family.

The administration of an estate can take many months, and more complex estates may take considerably longer to resolve. What may take only minutes to generate can create months of additional time, expense and stress for your loved ones.

When it comes to your Will, convenience should not come at the expense of certainty. Contact our team today for a no-obligation consultation around your new Will.

The post AI-Generated Wills: Are You Really Protecting Your Family? appeared first on Tony Kelly Lawyer & Estate Planner.

What are chattels?

To put it simply, ‘chattels’ refer to personal property or movable assets that are not land or real estate. In legal terms, chattels are tangible items that can be physically moved and transferred from one person to another, such as goods, furniture, or possessions. They are different from real property, which includes fixed assets, like land or buildings. Chattels also consist of items like jewellery, vehicles, art pieces, or family heirlooms.

The Administration and Probate Act 1958 (Vic) defines “personal chattels” as including:

“carriages horses stable furniture and effects (not used for business purposes) motor cars and accessories (not used for business purposes) garden effects domestic animals plate plated articles linen china glass books pictures prints furniture jewellery articles of household or personal use or ornament musical and scientific instruments and apparatus wines liquors and consumable stores but does not include any chattels used at the death of the intestate for business purposes nor money or securities for money”.

The main feature of chattels is how easily they can be transported, along with their clear difference from real property. The above definition also distinguishes chattels from items used in the conduct of a business. When a person passes away, the chattels they owned become part of their estate and must then be distributed in accordance to the terms of their Will or, in cases of intestacy, in accordance with the laws of succession.

Why is it essential to know the relevance of chattels?

Chattels possess great significance when an estate is being distributed after death, as they can have a substantial effect on the deceased person’s family and loved ones. An individual may normally leave directions as to how certain items are to be distributed, often to safeguard personal belongings, sentimental items, family heirlooms, or the like.

In situations of intestacy, Victorian law gives directions for distributing chattels to guarantee that personal property is justly dispensed according to the family relationships. Usually, chattels are given to the surviving spouse or children. This approach is taken to make sure that the personal items of the deceased person are passed on to those that were closest to them, or those who were most likely meant to inherit the items if there were a Will.

Cases addressing chattels

Numerous courts have had to identify whether specific items would constitute chattels. In the case of Smith v Smith (2012), a dispute arose over a family heirloom which held significant sentimental value. The heirloom, a painting, was categorised as a chattel but such characterisation was contested by the heirs. The Court held that despite its value and significance to the family, the painting was a chattel due to its mobility. A chattel is a moveable item that is not fixed to the property.

Other items that are much larger and less mobile may be more challenging to distinguish. McCauley v McCauley (2007) addresses this issue. This case concerned a dispute over whether certain fixtures and improvements on a property, being a pool and decking, should be considered as chattels or part of the real property. The court held that these items were not considered as chattels due to their permanent attachment to the land. It was highlighted that an item that is permanently fixed to the land or a building revokes itself from being considered a chattel. The pool and decking in this case were intended to stay in place as part of the property and therefore were considered as real property.

Bequeathing chattels to beneficiaries

It is essential to note that a testator (Willmaker) possesses the choice to bequeath specific chattels in their Will, such as the examples mentioned previously. Alternatively, the testator has the option to refer to a non-binding list that is kept separate to their Will, outlining the distribution of the items. Granted that the list is not legally binding, it does supply direction and guidance to the executor to aid in ensuring that chattels are distributed in accordance with the testator’s intentions.

In many cases, clients would bequeath chattels to a group of beneficiaries, like their children, in order for them to divide between themselves. While this approach works well when the beneficiaries can easily come to an agreement on how to divide them, it is still best for the testator to provide some general guidance in order to lessen the chance of possible disputes down the line. We recommend that testators include a specific procedure as to how chattels are to be divided in the instance that beneficiaries cannot come to an agreement, such as ‘drawing straws’ to determine the order in which beneficiaries can select chattels.

Testators may also consider whether a beneficiary’s portion of the residuary estate should be modified according to the value of the chattels they have inherited. To give an example, if one beneficiary receives an item more valuable than the other, the testator might choose to reduce their share of the residual estate to ensure the distribution among all the beneficiaries avoids any unintended inequalities.

Conclusion

The classification of property as chattels is crucial for determining how items will be distributed after someone’s death. Courts look into the nature of the property and the circumstances in question. Various aspects would be considered by the Court such as the item’s use, value, and relationship to the real estate. By understanding the importance of chattels and addressing them appropriately, legal practitioners can prevent potential disputes between family members.

The post What are ‘chattels’ and why are they important? appeared first on Tony Kelly Lawyer & Estate Planner.

The Intestacy Provisions

For a person who is married or whose spouse has predeceased them, and who had children with only one partner, the order of succession is as follows:

1. Partner
2. Children
3. Parents
4. Siblings
5. Grandparents
6. Aunts, uncles or cousins.

Where there is more than one person in a category (e.g. multiple children), the Estate is divided between those who survive the Deceased by at least thirty days. The exemption is where the Estate is to be divided between children and one child has predeceased the Deceased.

For example, say Paul had three children: Ron, Meg and Stephanie. Meg unfortunately predeceases her father, leaving two children of her own. Ron and Stephanie will each receive one-third of Paul’s Estate and the remaining third, which would have been distributed to Meg, is split between her surviving children. This may be what Paul intended or he may have wished to distribute his Estate differently; for example, Ron may have been in a poorer financial position than his sisters and Paul may have thought him deserving of additional benefit from the Estate.

Important: the Administration and Probate Act as amended in 2017 now provides that, where there are no relatives beyond aunts, uncles or cousins, the Estate is deemed to be the property of the Crown. This is different to previous provisions which allowed more distant relatives to claim the Estate. This underscores the need to make a Will, particularly if you have few living blood relatives who could inherit your Estate on intestacy.

For a person who has a partner, but children from a previous relationship, the rules vary slightly. The partner is entitled to what is known as the ‘Statutory Legacy’ amount, plus the Deceased’s personal chattels, interest, and one-half of the residuary Estate (whatever is left). The Statutory Legacy amount is currently $499,210. The Deceased’s children from the prior relationship share in the other 50% of the residuary Estate.

Say Paul has a partner, Rose, who is not the mother of Ron, Meg and Stephanie. Paul dies with assets worth $1 million in his Estate. From the Statutory Legacy, plus the interest and the chattels, Rose will receive approximately $500,000. She will also receive a further $250,000, being one-half of the residuary Estate. Ron and Stephanie would then receive one-third of $250,000 each, and Meg’s children would receive one-sixth.

Again, this may accord with the Deceased’s intentions, but the intestacy provisions can lead to disappointment. In this scenario, the Deceased’s spouse is essentially receiving three-quarters of his Estate, with only a quarter to divide between his children and grandchildren. Furthermore, if a Deceased’s total Estate is less than the Statutory Legacy, their partner is entitled to the entire Estate. This leaves their children from a previous relationship with nothing, which is unlikely to be what the Deceased wanted.

Letters of Administration

In the absence of a Will appointing an Executor, someone must apply to the Supreme Court for Letters of Administration of the Deceased’s Estate. This is usually one or all of the people best entitled to share in the Estate (e.g. the Deceased’s spouse or children). While the process of applying is similar to that of an application for Probate of a Will, there can be additional complications. Children of the Deceased may have to provide additional documentation to prove their paternity, for example, if the Deceased and their mother were not married.

Situations also arise where the persons most entitled to the Estate cannot act as Administrators because they are minor children or because they are incapacitated, so another person must prove to the Court that they are the most appropriate Administrator. These issues are not insurmountable but create an additional challenge for the family of the Deceased that could have been avoided.

The only way to ensure your wishes are carried out after your death is by making a legally-binding and properly drafted Will. A formal Will not only gives you peace of mind, knowing your Estate is to be distributed as you have directed, but also relieves the burden on your loved ones after your death. Our experienced team can assist with preparing Wills covering a range of family scenarios, tailored especially to your situation and wishes. Contact us today to arrange a no-obligation meeting.

The post Dying without a Will appeared first on Tony Kelly Lawyer & Estate Planner.

Relationship breakdowns

When you give a sum of money to a child, that sum becomes an asset in their own name (i.e. legal title rests with them). If your child has used that sum to purchase a house with a partner, and the relationship subsequently breaks down, that house (and the equity in it) would likely be subject to a property settlement or Family Court orders for division of property. Some or all of the equity that you have contributed may therefore be ‘lost’ to your child’s now-former partner.

For example, say your son and his wife purchase a unit in Hawthorn worth $1 million. Your son and his wife contribute $100,000 each, you contribute $200,000 by way of a gift to your son and the couple take out a loan to cover the remaining $600,000. Your son and his wife subsequently divorce. Their lawyers arrange for a property settlement whereby the house is sold and the bank repaid. The remaining $400,000 in equity is then divided between the divorcing parties equally. Half of your gift to your son has therefore been ‘lost’ to his ex-wife, an undesirable outcome for both you and him.

Creditors

Similarly, a sum of money gifted to a child can be exposed in the event of a business failure and subsequent insolvency proceedings. Take the example above but assume your son and his wife are still together, but your son runs his own hospitality business. Market conditions force your son to close his cafe as the business is no longer solvent, with thousands of dollars in debt to his landlord and to suppliers. Some of those creditors launch a proceeding to recover such debts and the court orders that your son’s house is to be sold to make repayments. Again, the bank would be repaid first, as it has a registered mortgage over the property, and the rest of the creditors would be able to claim amounts owing to them from the $400,000 remaining. Your gift to your son could quickly dissipate in such a scenario.

Death

Many couples choose to own their homes as joint tenants. A joint tenancy means that, on the death of the first spouse, the surviving spouse is automatically entitled to the sole ownership of the property (regardless of the provisions of the deceased’s Will) under the ‘doctrine of survivorship’. Using the above example, if you had given $200,000 to your son to purchase a property, which he and his wife held as joint tenants, his wife would own the entire property after his death. She would have no obligation to return that sum to your family during her lifetime or in her Will, and could (for example) use the equity she received from selling that property to purchase property with a new partner. Making absolute gifts to a child can result in your ‘side’ of the family ultimately ‘losing out’ on the benefit which the provision of that sum provided.

How should I help my children instead?

The best method for ensuring asset protection when assisting a child to purchase a property is by lending them the money and having a proper loan agreement (prepared by a solicitor) in place. Your child does not need to make large repayments on the loan or pay interest unless you so wish. Your child can simply make a nominal repayment (any sum over $1.00 will suffice) on a specified date to ensure the loan is ‘alive’. It is our recommendation that such repayment is made on a specified date in each year as a loan can be deemed unenforceable if no repayments are made during a six year period.

You can then ensure your contribution to assist in the purchase of the home is protected by securing a mortgage over the property or by lodging a caveat. In most instances, security by way of second mortgage will be most appropriate as your child will likely already have a first mortgage to a bank. Should your child purchase a property jointly with a spouse or domestic partner, such partner should also be party to the loan agreement. If your child experiences a relationship breakdown, is sued or becomes insolvent in the course of business, or dies, you will be considered a creditor who can recover the amount advanced.

Lending money to children is an important consideration as part of your wider succession and estate planning strategy. Our expert team regularly assists clients to document such loans in a manner that is enforceable, fair to all parties and consistent with your wishes regarding your succession and estate plans.

If you are thinking of assisting a child with the purchase of a property, contact us today to discuss how to achieve the best outcome.

The post ‘Giving’ money to your children: a good idea? appeared first on Tony Kelly Lawyer & Estate Planner.

Memorandum of Wishes

A Memorandum of Wishes is a document that is stored with your Will. It is not legally binding (and should be expressed as such to ensure it does not revoke your Will) but can be used by your Executors, beneficiaries or by the Court to provide context to your Will or further instructions. We regularly assist clients to prepare Memoranda of Wishes in the following situations:

• Where they have chosen to exclude someone from their Will , or give disproportionate amounts to beneficiaries, and wish to explain their reasoning for so doing (which can also be produced to the Court if the Will is challenged);
• Where their Executors/Trustees will be taking control of a Trust or business and the Willmaker wishes to provide guidance on how that Trust or business should be run; or
• Where the Willmaker has children under the age of eighteen and has appointed a Guardian in their Will to whom the Willmaker wants to give directions as to the children’s upbringing.

A Memorandum of Wishes is a flexible document and can be adapted to the individual Willmaker’s needs. We have seen Memoranda include directions such as ‘I would like my Trustees to advance funds to my grandchildren to purchase a car at the age of eighteen’ or even ‘I would like seafood platters at my wake’.

We can help you tailor this document to fit you and your wishes. For more information on the Memorandum of Wishes, see our blog post here.

Personal Information and Asset Register

As part of our service, we provide all Wills clients with a copy of our Personal Information and Assets Register, which is a document (in hard- and soft-copy) specifically tailored for clients to record up-to-date details of their property and other matters. The document includes spaces to record the contact details of individuals who should be contacted in the event of the Willmakers death, the details of any pre-paid funeral plans or burial plots, and the usernames and passwords for the Willmaker’s social media accounts. Such a document assists the Executors of the Willmaker’s Estate to carry out their wishes as well as the day-to-day running of the Estate, as the details of the Deceased’s assets are set out clearly for the Executor to ‘call in’. We regularly update our Register document to ensure it is in line with our clients’ needs and can even store a digital copy in the cloud for clients on request.

Organ Donor Register

Many of our clients wish for their organs to be donated for medical purposes after their death. While we can include such a direction in a Will, Memorandum of Wishes or Personal Information and Asset Register, it would likely be too late to implement your wishes for organ donation by the time those documents are read. We recommend that any client who wishes to donate their organs registers their intentions with Donate Life online. Donate Life then provides each individual with a donor card to carry in their wallet. It is also crucial that you inform your family members of your wishes as they may be called upon to make the final decision as to whether your organs are recovered for donation.

Please note that organ donation is a separate issue to Advance Care Directives, which deal with your wishes for the end of your life. For more information on advanced planning, click here.

Digital Keys

As our lives become increasingly digital, clients are becoming conscious of what happens to their ‘digital assets’ after their deaths. Such assets may include subscriptions and purchased content (e.g. Netflix and Spotify accounts), photos stored in the cloud (e.g. through iCloud or Dropbox) or important documents, such as those related to a business, stored in a Google Drive. Your Will may dictate the ownership of these digital assets or you may have other specific wishes for these assets, such as a playlist for your funeral or photos for your memorial booklet. You may also wish for your Executors to log into your social media accounts to place them in ‘memorial mode’.

To address these concerns, some providers have introduced products that allow individuals to nominate a contact who can access their account after their death through a ‘key’ or ‘legacy contact’. We suggest that our clients research their own legacy contact or digital key products as they will vary according to which services you use. While we do not endorse any specific product, this article gives a breakdown of options for some popular providers such as Apple, Google and Facebook.

Looking for holistic Estate Planning advice, taking into account both your legal options and your non-legal wishes? Contact our friendly team today to arrange a no-obligation consultation at our CBD office or via videoconference.

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