Parenting Orders: Time With Children vs Parental Responsibility. What is the difference?

In family law, parenting orders regulate arrangements for children after separation. This includes:

  1. “Time with children”(sometimes described as “spending time” and “living with”); and
  1. “Parental responsibility” (decision-making power regarding major long-term issues).

A parent may have substantial time with a child but limited parental responsibility (or vice versa), depending on what the Court considers to be in the child’s best interests.

Throughout family law proceedings, parents are encouraged to reach mutual agreement on children’s matters to minimise court intervention.

 

What are parenting orders?

Parenting orders are orders made by the Federal Circuit and Family Court of Australia dealing with children. They can cover matters such as:

  • who the child lives with;
  • who the child spends time with and communicates with (and how);
  • allocation of parental responsibility for major long-term decisions;
  • changeover arrangements and travel;
  • conditions designed to manage risk (for example, supervision or injunctions).

Parenting orders may be sought by a child’s parents and, in appropriate cases, by other persons concerned with the child’s care, welfare or development (for example, grandparents).

 

The Court’s considerations

When making parenting orders, the Court’s paramount consideration is the best interests of the child.

In practical terms, the Court considers matters such as:

  • the child’s safety, including any history or risk of family violence or abuse;
  • the child’s developmental, emotional and practical needs;
  • the capacity of each parent (and other relevant carers) to meet those needs;
  • the benefit to the child of maintaining meaningful relationships (where safe) with both parents and significant others;
  • any views expressed by the child, taking into account the child’s maturity and circumstances.

Importantly, the Court does not determine parenting matters by allocating “fault” for the relationship breakdown. Allegations such as infidelity are usually irrelevant unless they bear on the child’s welfare or safety.

 

Time with children (living with / spending time / communication)

Time with children concerns the child’s day-to-day arrangements and the schedule for:

  • where the child lives;
  • when the child spends time with each parent (weekdays, weekends, holidays, special occasions);
  • how the child communicates when not in a parent’s care (telephone, video calls, messages).

There is no legal presumption that parents will have equal time. Any time arrangement must be workable and, most critically, safe and in the child’s best interests.

 

Age and attachment can be relevant

For very young children, the Court may consider:

  • the child’s primary attachment and routine;
  • the child’s ability to tolerate changeovers and overnights;
  • each parent’s demonstrated capacity to manage the child’s day-to-day care.

 

Family violence and risk management

Where there are allegations or findings of family violence, the Court may make protective orders affecting time, for example:

  • supervised time (supervision by an agreed family member or at a professional supervision service);
  • orders limiting or structuring changeovers (including changeover at a contact centre or via third parties);
  • injunctions restraining derogatory comments or harmful conduct in the child’s presence.

These measures are used to balance (where possible) the child’s benefit of a relationship with both parents against the need to ensure the child’s physical and psychological safety.

 

Parental responsibility (decision-making power)

Parental responsibility refers to the duties, powers and authority parents have in relation to their children. In parenting matters, the key focus is often on decision-making about major long-term issues, which typically include:

  • education (including school choice);
  • major health decisions;
  • the child’s name;
  • religious and cultural upbringing;
  • changes to living arrangements that make it significantly harder for the child to spend time with the other parent.

 

Separate from “time”

Parental responsibility is not the same as day-to-day care. For example, a parent may “spend time” with a child and make routine decisions during that time (meals, bedtime, ordinary activities) without necessarily holding equal authority over major long-term decisions.

 

Equal parental responsibility: when it applies, and when it may not

Historically, Australian family law operated with a presumption in favour of equal shared parental responsibility in many cases. However, where there are concerns such as family violence, abuse, or serious welfare risks, the Court may find that equal shared decision-making is inappropriate.

Depending on the evidence, the Court may make orders for:

  • sole parental responsibility (one parent makes major long-term decisions); or
  • allocated parental responsibility for specific issues (for example, one parent has sole parental responsibility for health, while other issues remain joint).

Parenting matters can be complex and have a significant impact on you, your children and your former partner. It is important to have a comprehensive agreement in place to provide clarity and certainty for the whole family.

For more information or to discuss your options, contact our experienced family law team at mail@redhale.com.au or call us on 02 9587 3866.

Binding Financial Agreements (BFAs) after Separation

What Is a Binding Financial Agreement (BFA) and What Is It For?

A Binding Financial Agreement (BFA) is a private, legally binding agreement that allows couples to decide in advance how their assets, property, and finances will be divided if their relationship breaks down. BFAs can be made before entering into a marriage or de facto relationship, during the relationship, or after it ends. These agreements provide clarity, reduce uncertainty, and can help avoid disputes by setting agreed terms for property division, spousal maintenance, superannuation, and other financial matters.

The agreement 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

A properly drafted BFA offers peace of mind by giving both parties certainty about their financial future, regardless of how circumstances may change.

 

Why Consider a BFA After Separation?

Following separation, many couples seek a clear and final resolution of their financial relationship. A Binding Financial Agreement (BFA) can be a practical way to achieve a clean financial break, allowing both individuals to move forward without ongoing financial obligations or the possibility of further claims.

A solicitor may recommend a BFA over consent orders in certain situations, including:

  • Flexibility: BFAs can allow for arrangements or terms that may not fall within the standard scope of consent orders. For example, they might address future financial arrangements or unique property matters specific to the parties’ circumstances.
  • Efficiency: While consent orders, once filed with the Court, are legally binding and enforceable, the process involves further steps in preparing documents and awaiting court approval. In comparison, a BFA may allow parties to resolve their financial matters in a shorter timeframe, as it does not require court lodgement or approval (although it must still adhere to strict legal requirements to be valid).
  • Tailored Solutions: In complex or out-of-the-ordinary financial situations, a BFA may provide a greater degree of customisation and flexibility than the court would generally permit in consent orders.

 

What Can Go Wrong with a BFA?

For a BFA to be valid under the Family Law Act 1975 (Cth), it must meet strict legal requirements. If these requirements are not followed, the agreement may not be enforceable. The common pitfalls include:

  • Not receiving independent legal advice for each party
  • Failing to fully disclose all assets and debts
  • Signing under pressure, duress, or without true consent
  • Not meeting formal requirements, such as having the agreement in writing and signed by both parties, with attached certificates of legal advice

Even if a BFA is signed, the court can set it aside for reasons such as:

  • One party was coerced or pressured into signing
  • There was fraud, for example, by hiding assets or giving false information
  • The agreement is considered seriously unfair or unconscionable

 

Why Proper Drafting Matters

A well-prepared BFA ensures clarity and security for both parties and significantly reduces the risk of future disputes. It is essential to obtain proper legal advice and follow the correct legal process so your agreement is valid, compliant, and enforceable. 

For more information on drafting valid and effective Binding Financial Agreements contact our experienced family law team. We ensure that every agreement is tailored to your circumstances and fully compliant with all legal requirements, giving you confidence and security for the future.

 

For more information or to discuss your options, contact our experienced family law team at mail@redhale.com.au or call us on 02 9587 3866.

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

What to Do After Separation: Achieving a Clean Financial Break

Do I need to Disclose That? - Family Law

Understanding the Need for a Clean Break

After the breakdown of a marriage or de facto relationship, it is important to address the division of assets, property, and financial matters as soon as practicable. Finalising financial settlements not only provides certainty for both parties but also prevents future disputes and financial claims. In Australia, the law is designed to allow parties to achieve a “clean break,” meaning that financial ties between former partners are brought to an end.

 

The Importance of Formalising Your Financial Settlement

Relying on informal agreements or private arrangements can carry significant legal risks. Unless your property settlement is formalised through legally recognised processes, such as Consent Orders or a Binding Financial Agreement (BFA), either party can make further claims, sometimes years later. Formal documents give legal effect to your agreement, ensuring it is enforceable and providing peace of mind for the future.

 

Your Main Options: Consent Orders vs. Binding Financial Agreements

There are two main ways to formalise a property settlement in Australia: Consent Orders and Binding Financial Agreements. Each option has distinct features, advantages, and considerations.

 

Consent Orders

Consent Orders are made via an application to the Federal Circuit and Family Court of Australia. This application will include your financial positions, how you both wish to divide the assets and liabilities, and any supporting documents. Once approved by the Court, the Consent Orders are legally binding and enforceable. The orders can cover property division, superannuation, spousal maintenance, and if appropriate – parenting arrangements.

Key features:

  • Recognised and enforceable as Court orders
  • The Court will only approve Consent Orders if they consider the agreement to be “just and equitable”
  • Provide finality and prevent future claims once made

 

Binding Financial Agreements (BFAs)

A Binding Financial Agreement (BFA) is a private agreement between partners, including former partners. It allows parties to reach their own agreement about how to divide assets and liabilities, without the need for court involvement.

Key features:

  • Do not require court approval or lodgement
  • Each party must receive independent legal advice before signing
  • Offers greater flexibility
  • Must strictly comply with legal requirements to be valid and enforceable
  • Provide certainty and can achieve a clean break if properly drafted

 

Which Option Is Right for You?

The choice between Consent Orders and a BFA will depend on your circumstances, the complexity of your financial arrangements, your level of cooperation, and your preferences regarding cost, and timing. In all cases, it is essential to obtain professional legal advice to ensure your agreement is legally effective and that your interests are protected.

 

Next Steps

If you have recently separated, consider seeking legal advice as soon as possible to discuss your options and time limits for property settlement. Taking prompt action can safeguard your position and help ensure a smooth transition to your next chapter.

Our team has extensive experience advising on property settlement after separation. We assist clients with Consent Orders, Binding Financial Agreements, and tailored solutions to suit your needs through all family law matters, ensuring every agreement is fully compliant and provides the confidence of a clean financial break.

For more information or to discuss your options, contact our experienced family law team at mail@redhale.com.au or call us on 02 9587 3866.

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

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Enduring Guardianship and Advance Care Directive – What’s the Difference

Enduring Guardianship documents and an Advanced Care Directives are similar legal documents which ensure that you have autonomy to make decisions about future health care, while you have capacity to do so, in anticipation of a time where you may not be able to make those decisions yourself. They’re important tools to ensure that serious medical treatment can be delivered with dignity and with your own values in mind.

 

How are these documents different and how do they operate?

 

 

Enduring Guardianship

An Enduring Guardianship enables you to appoint a trusted family member or friend to make health care decisions in your place should you become incapacitated. It is a significant legal document, and the decision to appoint someone as your guardian should not be made lightly.

In this circumstance, a guardian is able to make health decisions in your place, and is guided by the terms of their appointment included in the legal documents that you sign prior to losing capacity. You can limit a guardian’s power, or explicitly prohibit them granting permission for particular procedures.

A guardian is able to consent on your behalf to a range of health and care decisions, including what medicines you receive, to consent to most surgeries and to decide whether you require residential care. These powers are only activated in a circumstance where you are unable to make these decisions yourself, such as through loss of capacity through disability, dementia, injury or severe mental health crises.

 

Advanced Care Directive

Separate to the appointment of an Enduring Guardian, an Advanced Care Directive is a record of your specific instructions as to what healthcare you wish to receive. Sometimes, these are called ‘living wills.’

An Advanced Care Directive is a direct expression of your consent. Generally prepared with a medical practitioner, an Advanced Care Directive goes through specific procedures, treatments and medications and indicates your consent to each of these factors individually. This can be done in anticipation of the complications of a specific illness, or with a view to palliative care being required.

A potential limitation of an Advanced Care Directive is that it may not anticipate the exact circumstances which arise after you have lost capacity, which results in there being no prior consent for your treating medical professionals to rely upon, and challenges identifying who can provide consent on your behalf.

 

 

How did these documents interact?

The most powerful form of consent to a medical procedure is the consent of the patient themself. Therefore, where a properly executed Advanced Care Directive exists, the directions outlined in this document will prevail over the decision of an appointed Enduring Guardian.

The role of Enduring Guardian in this circumstance would be to step in where the Advanced Care Directive is unclear or incorrectly executed, or does not contain appropriate instructions for the circumstances which have arisen.

In cases of serious illness, Advanced Care Directive can be used by an Enduring Guardian to guide their decisions on your behalf.

 

If you wish to appoint an Enduring Guardian, get in touch with us today. The NSW Guide to preparing an Advance Care Directives can be found here. 

 

Dan Simpson celebrates 50 years of Legal Practice

Dan Simpson, Principal Solicitor of Redmond Hale Simpson Solicitors and Barristers, is celebrating 50 years of legal practice in 2025. The milestone was marked by the NSW Law Society at a celebration on September 8, 2025.

Admitted as a solicitor by the Supreme Court of NSW in March 1976, Dan has practiced in the St George area of Sydney for his entire career. He completed a Bachelor of Laws at Sydney University Law School.

“Growing up in Tamworth, Inverell and Parkes, I was encouraged by my high school English teacher to pursue a career in the law. I will always be grateful for that advice and the opportunities it has afforded me.”

At the start of his career, Dan focussed on criminal law and litigation in court, and now primarily practices in the areas of succession, estate planning and conveyancing. Some of his clients from his earlier days practicing in Hurstville still remain clients to this day. After establishing his own practice, Dan Simpson and Associates, in Kogarah, Dan merged his firm to form Redmond Hale Simpson in 2005. The firm relocated to Brighton-le-Sands in 2019.

Dan is a life member of the St George and Sutherland Law Society, and served as president from 1988-1989.

“Our local law society continues to support the legal profession locally and promote lawyers to work together collaboratively for the best results for our clients.”

After five decades in practice, Dan continues to serve clients from first home buyers through to executors of estates, alongside the experienced team at Redmond Hale Simpson.

Outside of the law, Dan enjoys golf, music, reading, and rugby league. He lives in Oatley with his family. He has served as an Alderman on Hurstville City Council is committed to community service, providing pro bono legal assistance to the Cancer Council and Oatley Lions Club.

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

  1. 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?

  2. 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.

  3. Seek Independent Legal Advice
    Each person must have their own lawyer to explain the agreement and its effects.

  4. Draft and Sign the Agreement
    A lawyer will draft the agreement to ensure it meets legal requirements. Both parties then sign.

  5. 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.

I Want To Donate My Body To Science – What Legal Steps Do I Have To Take?

Some people wish to contribute to science and medical research by bequeathing their body to a research institution. This is an important contribution to universities and organisations across the state, however, if not done properly, your gift may not be legally possible.

 

DONATING THROUGH A WILL?

In New South Wales, it is not possible to consent to donate your body to science through your Will alone, and research organisations will not be able to accept donations from your executor.

 

WHAT SHOULD I DO INSTEAD?

To make an effective donation of your body, there are important steps to take:

  • Identify which organisation you’d like to receive your donation

There are a number of organisations which may benefit from your donation, including universities, the Organ Donor Register and the Brain Bank. A list of these organisations is available at the bottom of this page.

Each organisation has its own list of criteria which may make you ineligible, including certain illnesses or risk factors. Consider carefully whether your chosen organisation will be able to accept your contribution

  • Register with the organisation

Each organisation has a registration process for donors, including medical disclosures. Get in touch with them directly to commence the process

  • Prepare your Will and nominate your executor

Make sure the person responsible for managing your affairs when you pass is aware of your registration with the organisation and has a copy of relevant paperwork. When you pass, there is a very limited window of time for your donation to be accepted by the organisation and transported to their facilities for use. Your executor can take steps as soon as you pass to contact the organisation and increase the chances of a successful donation. Your executor should also be aware of your alternative preferences if your body cannot be accepted.

 

HOW LONG CAN MY REMAINS BE STORED

Under NSW law, human specimens can be stored for a maximum of four years, with a possible extension for an additional four years.

 

WHAT HAPPENS ONCE MY REMAINS CAN NO LONGER BE USED?

While each organisation will have different processes, many organisations will arrange for cremation at the end of the retention period, and will cover the costs of the cremation. Your family will then be able to receive your ashes.

 

WHAT HAPPENS IF MY REMAINS CAN’T BE ACCEPTED?

There are many reasons why an organisation may be unable to accept your donation, including illnesses or medical reasons, if you pass outside of their donation area or if there is limited capacity to accept your donation. If this happens, your executor or family will be responsible for making decisions about if your body should be buried, cremated or otherwise managed. It is important you communicate your alternate wishes with your loved ones.

 

ORGANISATIONS ACCEPTING DONATIONS

University of New South Wales School of Biomedical Sciences – Bequeathal Program: https://www.unsw.edu.au/medicine-health/our-schools/biomedical-sciences/partner-with-us/bequeathal-program

University of Technology, Sydney – Body Donation Program: https://www.uts.edu.au/about/faculty-science/surgical-and-anatomical-science-facility/body-donation-program

University of Sydney – Body Donor Program: https://www.sydney.edu.au/medicine-health/industry-and-community/support-us/body-donations.html

Macquarie University – Body Donations: https://www.mq.edu.au/faculty-of-medicine-health-and-human-sciences/engage-with-us/body-donations

Western Sydney University – Body Donor Program: https://www.westernsydney.edu.au/body-donor-program

Australian Organ Donor Register: https://www.donatelife.gov.au/register-donor-today

MS Australia Brain Bank: https://msbrainbank.org.au/

Lions Eye Bank: https://lionssavesightfoundation.org.au/lions-nsw-eye-bank (Please note, donations to the Eye Bank can be facilitated through the Australian Organ Donor Register)

Please note this list is not exhaustive.