Wills, Enduring Guardians, Probates & Estates

Wills

After your death, it is important to ensure that your property is dealt with in the way you wished.

It is essential that you prepare a proper Will which is always maintained up to date to protect your legal rights.  For those who have more complex estates, our firm is able to prepare Testamentary Trusts.

It is also important to have a Power of Attorney and Guardianship documents in place in the event that you can no longer look after yourselves.  This ensures that the person you choose is appointed as your power of attorney or guardian and can make decisions in your best interests.

There are also times when people are left out of a Will or families may dispute that others are getting too much or not enough of the estate.  In such circumstances, our firm is experienced in dealing with such issues and will provide advice to you so you are aware of your possible entitlements and the rights and responsibilities of other parties to the Will.

Our wills, probate and estates services include:

• Challenging a Will - Disputed Estates
• Preparing a Will
• Preparing a Power of Attorney
• Preparing a Guardianship Document
• Probate

Challenging a Will

There are two ways in which you can challenge a will.  They are the following:

Challenge the validity of a Will

Forgery issues, Compliance issues with formal requirements for a Will, and/or the Will maker (Testator) not having the capacity to make out a Will.

Rewriting Will

Under the Family Provision Act the Court has the power to rewrite a Will.  It does this by making an order for provision in favour of an eligible person out of the estate of a Will maker (Testator) if, the Testator left the person out of their Will, or the Testator did not make adequate provision for the person in their Will.

An order may be provided to the Claimant (the person disputing the Will) in either a monetary amount, a specific asset or out of the estate of the Testator.

To be able to apply for provision you must be an eligible person defined in the Family Provision Act.  People who automatically qualify as eligible persons are:

• Widows and Widowers
• De-facto Widows and Widowers
• Children
• Ex-Wife/Husband
• A Grand Child (but only if he/she was dependant on the Testator)

To receive an order for provision, an eligible person must show that he/she has been left without adequate provision for their maintenance, education and advancement in life.

In deciding what order to make, the court looks at all the facts of the case, particularly:

• The needs of the eligible person
• The needs of other beneficiaries of the will
• The size of the estate (including notional estate)
• The contribution the eligible person made to the Testator (financially and otherwise)
• The relationship between the Testator and the eligible person
• The "moral claim" of the eligible person

An eligible person has eighteen (18) months from the date of the death of the Testator to apply to dispute an estate.  Permission of the Court is required should an extension be requested and will only be granted if there are good reasons for not applying within the limitation period.

A win will usually result in about 50-75% of your legal costs are being paid out for by the estate, the rest will need to be paid from the proceeds of your claim.

If you lose, your legal costs are not paid for by the estate and you may be ordered to pay the estates legal costs.

Our firm is able to investigate your claim and advise you on your position in succeeding in a challenge to the Will and whether we think you have a good claim.  If you do we will file an application for provision and supporting statements (affidavits) at the Supreme Court.

Power of Attorney

A Power of Attorney is a legal document appointing a person or a trustee to manage your financial affairs and assets.  A Power of Attorney is useful if you are going overseas, are unwell or immobile and you need assistance in managing your financial affairs and assets.

There are certain limitations to this and therefore it is strongly recommended that you appoint an Attorney who you can trust unreservedly.

Limitations on the Attorney are put in place by the Law to ensure they act at all times in the best interest of the principal (the person who appoints an Attorney). Should the Attorney breach their authority they can be liable for any loss suffered by the principal.

Enduring Guardian

An enduring guardian is a person appointed by you to make decisions on your behalf in relation to your lifestyle in the event that you become incapable to manage these decisions for yourself.  For example:

• As to where you live;
• Medical treatment you receive
• Other personal services you receive.

When appointing an enduring guardian you can specify what decisions they can and cannot make on your behalf by empowering them with certain functions.  You can decide on how many or few functions the guardian may have.

Legal limitations on the guardian include:

• You must be over 18 years old and you must have mental capacity (understand what you are doing) to appoint an enduring guardian
• The guardian must also be over 18 years old
• Your guardian cannot make a Will for you
• Your guardian cannot consent to your marriage
• Your guardian cannot manage your finances (A Power of Attorney is required for this).