Family Law – Redmond Hale Simpson Solicitors and Barristers in Brighton-Le-Sands

Understanding Prenuptial Agreements in NSW – a Guide to Binding Financial Agreements

A prenuptial agreement—known in Australia as a Binding Financial Agreement (BFA)—is a legal contract made between two people, generally before they marry or enter a de facto relationship. This agreement sets out how assets, property, and financial responsibilities will be divided if the relationship breaks down or ends.

BFAs can be signed at other stages of a relationship, including when financial circumstances change.

What is a Prenuptial Agreement?

A prenuptial agreement is designed to provide clarity and certainty about financial matters at the conclusion of a relationship. It can cover:

How property, savings, and investments will be divided
What happens to business interests
How debts and liabilities are managed
Arrangements for spousal maintenance
Financial protection for children of the relationship, or children of previous relationships

How Does a Prenuptial Agreement Work?

In New South Wales, prenuptial agreements are recognised under the Family Law Act 1975 (Cth). For a BFA to be legally binding, it must:

Be in writing and signed by both parties
Include full and frank disclosure of each person’s assets and debts
Be entered into freely, without pressure or duress
Be accompanied by independent legal advice for each party, with a certificate from each lawyer

If these requirements are not met, or if the agreement is unfair, a court may set it aside.

Steps to Create a Prenuptial Agreement

Discuss Your Goals
Talk openly with your partner about your financial situation and what you both want to achieve. Do you have assets you want to protect, or mutual financial goals you want to reach?
Full Financial Disclosure
Both parties must provide complete details of their assets, debts, and income. This includes real estate, shares, investments, superannuation, businesses and income from all sources.
Seek Independent Legal Advice
Each person must have their own lawyer to explain the agreement and its effects.
Draft and Sign the Agreement
A lawyer will draft the agreement to ensure it meets legal requirements. Both parties then sign.
Review and Update as Needed
If your circumstances change (for example, if you have children or acquire new assets), review the agreement to keep it up to date.

Why Consider a Prenuptial Agreement?

Lots of factors may lead to a BFA being useful in a relationship. One person may already own real estate they have worked hard to buy on their own, or have children from previous relationships they want to protect. Other factors might include existing financial relationships with family members or business partners, or even anticipated inheritances.

A prenuptial agreement can:

Protect personal or family wealth
Safeguard business interests
Clarify financial expectations
Reduce the risk of disputes and lengthy court proceedings
Provide peace of mind for both parties

A prenuptial agreement is a practical way to protect your financial future and set clear expectations before marriage or a de facto relationship. By following the correct legal steps and seeking professional advice, you can ensure your agreement is fair, valid, and enforceable.

For more information on Binding Financial Agreements or to discuss your options, contact our experienced family law team.

mail@redhale.com.au or call us on 02 9587 3866

This article was written by Philip Todorovski, Solicitor, Redmond Hale Simpson.

Choosing an executor for my Will – what do I need to consider?

Appointing an executor is an important decision when making your will. You should think carefully about the duties of an executor and the people in your life who you trust to fulfil your wishes before you name an executor in your will.

What does an executor do?

An executor is responsible for administering your estate, which means they implement the directions of your will or testamentary documents, settle any debts from available funds and finalise your affairs. They will, in most cases, be required to seek a grant of Probate through the Supreme Court of NSW, and then distribute your assets as instructed by you. Your legal advisor will tell you if it is not necessary to obtain a Grant of Probate.

For many estates, this is as simple as locating your will then taking steps to identify your bank accounts, if you own your home, and your superannuation and ensuring these are distributed. For other estates, business arrangements, complex investments and blended family arrangements can make this process more challenging. If there are legal disputes over your estate, your executor may need to participate in resolving these matters.

Executors usually seek the assistance of a solicitor through this process, with legal costs covered by the estate. Many executors will use the solicitor who assisted with your legal affairs, but they are under no obligation to do so.

If there are ongoing trusts in your will, or funds to be managed on behalf of a disabled or minor beneficiary until they are an adult, your executor will be responsible for overseeing these processes unless alternative arrangements are made.

If an executor is unwilling or unable to act on your behalf for any reason, then they are able to resign their position, known as ‘renouncing’ their role. This needs to be done formally as soon as possible after death.

Executors can apply to the Court for commission for their work.

What does an executor not do?

An executor is not personally responsible for your debts or liabilities if they are not covered by the estate.

Legal requirements

Any person over 18 who has legal capacity can act as an executor.

When making a will, you can nominate a single executor or multiple executors to act together. It is strongly recommended to name at least one substitute executor in your will in case your first preference is unwilling or unable to fulfil their duties for any reason.

Considerations

If your family circumstances and gifts in your will are simple, then naming a sole beneficiary and executor, such as your spouse or child, may be an easy choice for you.

If your estate is more complex, including trust, business and investment arrangements, or if you have more complicated family dynamics, your choice of executor may be more difficult.

It is important to choose an executor who you trust, and who you believe has the capacity to fulfil their legal responsibilities appropriately. When appointing multiple executors, you should consider their ability to work collaboratively. Appoint an executor whose interests are contrary to the interests of any beneficiaries should be avoided to minimise any personal conflict, but is not prohibited.

Being an executor can be a simple appointment, but it can also be a time consuming role. For this reason, you should consider whether the person you choose has the time and capacity to fulfil their duties. If their circumstances change between the making of your will and the will being administered, they can speak with a solicitor to renounce their appointment.

In appointing your executor and a substitute executor, you should give consideration to the likelihood that any person appointment is likely to survive your death.

The Court is unlikely to grant Probate to executors located overseas unless no other viable person is available.

Prior to nominating an executor, you should speak with them to ensure they are comfortable with the appointment. You do not have to disclose the contents of your will or any other details when doing so. Your executor should know the location of your will and where to find important information after your death.

Can a beneficiary be an executor?

It is very common for a beneficiary of a will to be an executor, including when the beneficiary is a spouse or child of the person making the will.

Conversely, it is not necessary for your executor to receive a gift in your will.

I don’t want to appoint a family member or friend as my executor, what can I do?

You can appoint your solicitor to be your executor, with provision made for relevant fees to be paid from your estate.

There are also trustee companies which can be appointed. Alternatively, arrangements can be made to appoint the NSW Trustee and Guardian. Both these options would attract substantial fees payable by the estate. Most lawyers discourage these options for because of the cost.

Ready to make a will? For advice on your Will and appointing an executor, get in touch with us today.

My family member or friend has died without a Will. What happens now?

If your loved one has died without a Will, you are not alone. Dying without a Will, which is known as dying ‘intestate,’ is a common but challenging issue which confronts many families across New South Wales and beyond during an already stressful time. According to the NSW Trustee and Guardian, approximately 60% of NSW residents do not have a Will in place to outline their wishes after they die leaving their families to navigate the complex process of intestacy.

When a person does without a Will, it is important that their surviving loved ones seek professional advice to ensure that his or her property passes legally and completely, and to minimise disputes between potential beneficiaries.

Complete or partial intestacy

Intestacy occurs when a person passes away with no Will at all, if a Will is invalid, or if their Will does not sufficiently deal with all of their assets.

In these cases, NSW intestacy laws determine how the deceased’s estate is distributed. This distribution may be completely contrary to the wishes or expectations of the deceased.

How can you be sure there is no Will or testamentary document?

Prior to administering an Estate without a Will, a thorough search needs to be conducted to confirm that no formal or informal Wills exist. This could include checking the deceased’s home, contacting any local solicitors or accountants who may hold documents on behalf of the deceased, and any other practical steps available to confirm no documents exist to indicate the deceased’s wishes.

Who is entitled to administer the Estate?

Without a Will, the Court must determine who can apply under the Succession Act 2006 to for the distribution of the Estate, known as seeking Letters of Administration.

People who are commonly able to apply include:

Spouse or de facto partner
Children
Parents
Siblings

If no family or next of kin are able to apply, the Court may appoint a person who can, in the opinion of the Court, be trusted to administer the Estate in accordance with the law.

A successful applicant becomes responsible for calling in the assets of the deceased, settling any debts, and distributing any remainder according to the provisions of the Succession Act 2006.

Who is entitled to inherit from the Estate?

The division of the Estate is dependent on the composition of the deceased’s family, taking into account:

Spouse or de facto partner
Children (including from current or previous relationships)

Adjustments will be made to provide adequately for the spouse of the deceased.

If no partner or children are able to inherit from the Estate, the Court will look to:

Parents
Siblings
Grandparents
Aunts and uncles

If no person is able to inherit under the Succession Act, then the deceased’s property passes to the State.

What now?

The administration of an Estate without a Will can be complicated, so seeking advice from an experienced Estate lawyer is critical to ensure the process is appropriately followed.

Our experienced Estate lawyers can guide you through the process, help you avoid disputes, and ensure the estate is distributed legally and efficiently.

If your loved one has passed away without a Will, or with a Will which does not adequately account for all their property, contact us today to discuss the next steps to finalise their estate.

Gifting Superannuation Through A Will

Superannuation is often the biggest asset a person will have in their lifetime and can be the largest part of a person’s Estate when they pass.

However, gifting your superannuation to family or friends after your death is more complicated than it first appears, as it does not always form part of your Estate.

Depending on your personal circumstances, it is important to understand the most effective way to leave a gift from your superannuation for your loved ones.

I HAVE A BINDING DEATH NOMINATION THROUGH MY SUPERFUND – HOW DOES THIS WORK?

A binding death nomination is a formal document lodged with your superannuation fund to specify who can receive a payment directly from the fund after your death.

If you have dependents, including a spouse, child or other family member, a binding death nomination may be the best way to provide for them after your death. Superannuation funds are only able to directly pass funds to dependent persons listed under law, including your spouse, minor child or dependent adult child.

A binding death nomination generally expires after a set period of two years and needs to be regularly updated. Some funds offer non-lapsing nominations on request.

I WANT TO LEAVE MY SUPERANNUATION TO SOMEONE SPECIFIC

If you have no dependents, or you wish to leave your superannuation to someone other than a dependent for any reason, a binding death nomination is unlikely to be the most effective way to leave a gift, as your superfund may not legally be allowed to pay this person.

Examples of gifts to non-dependent beneficiaries:

Gifts to non-dependent adult children
Gifts to grandchildren, nieces and nephews or cousins
Gifts to friends
Gifts to charitable organisations

In these circumstances, your binding death nomination should be to your “personal legal representative,” which gifts the balance to your Estate allows your Executor to handle your superannuation as part of your Estate.

You can then specify in your Will how you would like your superannuation to be distributed.

WHAT HAPPENS IF I DON’T MAKE A BINDING DEATH NOMINATION

If a person dies without making a nomination through their superfund, it is up to the trustee of the superfund to make payment to dependents or to the Estate of the person.

This can result in complicated financial implicated for recipients who are on Income Support, receiving Aged Care payments, or for minors.

It can also lead to your superannuation being granted to an unintentional recipient.

Even if provision has been made in your Will to gift your superannuation to a particular person, this may not be enforceable without a nomination.

WHAT ARE THE TAX IMPLICATIONS OF GIFTING THROUGH MY WILL INSTEAD OF THROUGH MY SUPERFUND

The financial implications of gifting funds through a Will instead of a superfund can vary. We recommend seeking financial advice to understand any complexities of your individual circumstances.

WHEN SHOULD I UPDATE MY WILL TO GIFT MY SUPERANNUATION

If you have changes in your personal circumstances, such as having children, entering a relationship, separating from a partner or significant changes to your personal assets, then you may wish to amend your Will and your Binding Death Nomination arrangements.

For advice on your Will and gifting superannuation, get in touch with us today.

Importance of having a Will

Planning for what happens to your estate after you die is an important step to ensure that your wishes are clear to your family, and to minimise stress and confusion for those left behind. A well-drafted Will is a critical part of this plan.

A Will is a formal written document which sets out how you want your property (“estate”) to be distributed when you die. Whilst a Will can appear to be a simple document, there are many formalities which need to be observed to ensure a Will accurately reflects your wishes. This includes ensuring your Will is properly signed and witnessed according to law.

Some important considerations include:

Your choice of Executor to seek Probate (the person who will be responsible for enforcing your wishes)
How your debts will be settled
How your funeral and testamentary costs will be paid
Who receives your property, including superannuation
Gifts to family, friends and organisations which are important to you
Tax implications of your gifts

Creating a valid Will can ensure instructions are in place for care and guardianship of minors and other dependants and is a way to leave gifts to children for when they grow up.

What happens if I don’t have a Will?

If you die without a Will (or ‘die intestate’), your possessions and assets will be divided as per the Succession Act 2006 (NSW). This Act passes your estate automatically to your spouse or relatives in a prescribed order which may differ from your wishes.

Dying without a Will means that gifts cannot be left to friends.

Wills for Marriage, Partners and Divorce

Having a clear and properly executed Will is important whenever there is a significant change in your relationship. This includes when you are married, or when a marriage comes to an end, and if you are cohabitating with a partner.

If you have a blended family, it is important to ensure that your Will reflects care arrangements for any dependents in your household.

Emergency Wills

If you or a family member believe that there is an urgent need for a Will to be drawn due to illness or injury, please get in touch with us before it is too late to do so. Please call our office and let us know the emergency and we will discuss with you how we can help. Our solicitors often visit hospitals and nursing homes by arrangement.

Get started on your Will today

With over eight decades of experience in Estate planning, the team at Redmond Hale Simpson is ready to answer any questions you have about making a Will. We offer fixed price Wills packages.

Do I Need to Disclose That?

Navigating through family law matters can often feel like walking through a maze, with each turn presenting a new set of challenges and questions. Among the most frequent and significant questions is, “Do I need to disclose that?” This is particularly pertinent in family law proceedings in Australia, where the law mandates comprehensive and honest disclosure to ensure fair and equitable outcomes.

But what does this mean for you, and how can you navigate these requirements effectively? Think of it not as a game of ‘hide and seek’ but more like ‘show and tell’.

Understanding the Requirement of Disclosure in Family Law:

In family law proceedings, disclosure is not a game of hide and seek with your assets and financial information. Instead, it’s a process of show and tell— a cornerstone principle that involves presenting all relevant information concerning your financial circumstances. This ensures that all parties have a clear and honest understanding of the financial pool available for division.

The Importance of Accurate Disclosure:

Proper disclosure is the foundation upon which accurate and appropriate advice is built. By fully disclosing all relevant financial details, you empower your legal team to provide advice that is tailored to your situation. This allows your lawyers to strategise effectively, anticipate potential issues, and navigate negotiations or court proceedings with a clear picture, thereby increasing the likelihood of a favourable outcome.

What Must Be Disclosed?

The requirement for disclosure in family law is comprehensive. You are obliged to disclose all forms of income, assets, and debts. This includes, but is not limited to, property holdings, bank accounts, investments, and even financial interests in trusts or companies. It’s not just your current financial state that’s under scrutiny; any significant financial transactions made in the lead-up to the proceedings must also be disclosed, particularly if they could be perceived as an attempt to minimise the financial pool available for division.

The Consequences of Incomplete Disclosure

Failing to disclose assets or providing misleading information is not taken lightly in the eyes of the law. Such actions can lead to severe legal repercussions, including the alteration of property division in favour of the other party, hefty fines, and, in extreme cases, criminal charges. The courts are equipped with extensive powers to deal with non-disclosure, and they are unafraid to exercise these powers to uphold the integrity of the legal process.

Exceptions

There are some exceptions where disclosure may apply. This can include cases where jurisdiction is disputed, such as where one party alleges a de facto relationship and the other does not; the process of disclosure can become more complex. This situation often arises when there’s a disagreement over whether the relationship falls under the Family Law Act. If there is no de facto relationship, then the Family Law Act will not apply, nor will the disclosure requirements. However, it may be necessary to provide evidence not just of your financial situation but also of the nature and extent of your relationship. This evidence can range from shared financial responsibilities (or, more correctly, the lack of if you are disputing a relationship) to the intermingling of lives and future intentions. It’s crucial to approach these situations with a strategy tailored to the specific circumstances of your case, often necessitating professional legal advice.

How to Navigate the Disclosure Process:

Navigating the disclosure process can be complex and daunting. It’s not just about being honest; it’s also about being thorough and meticulous. Keeping detailed records, being proactive in providing information, and, most importantly, seeking the guidance of a knowledgeable legal professional are critical steps in ensuring that you meet your disclosure obligations effectively. Remember, it’s about ‘show and tell’, being open and transparent, not ‘hide and seek’.

Conclusion:

In family law proceedings, the question “Do I need to disclose that?” bears significant weight. The requirement for full and honest disclosure is a testament to the legal system’s commitment to fairness and justice. Proper disclosure not only contributes to a more transparent legal process but also ensures that the legal advice you receive is as accurate and appropriate as possible, safeguarding your interests and paving the way for a fair resolution.

Disclaimer:

Please note that this article is for general information purposes only and is not intended to be relied upon as specific legal advice. Family law can be intricate and complex, and the requirements for disclosure can vary significantly based on individual circumstances, including disputed jurisdictions such as contested de facto relationships. We strongly advise consulting a family lawyer who can provide tailored advice and guidance based on your unique situation.