Thoughtful planning for peace of mind

A Will is a legal document that sets out how you want the things you own to be distributed when you die. Wills are not just for people who own property or who have lots of money. Making a Will is a positive step you can take to provide for the people you care about, leave particular items to certain people, appoint a person you trust to carry out the instructions in your Will (your Executor), leave any other instructions you may have (for example your funeral arrangements) and make a gift to charity if you wish.

Making a Will removes the doubts and difficulties that can arise when there is no evidence of a deceased person’s wishes.

If you do not have a Will, you do not have a say about how your Estate is distributed. If you die without a Will (known as dying “intestate”), your Estate will be distributed to your relatives according to the legal formula (called the “intestacy rule”). This can be very different from what you wanted or intended to happen. It can also cause complications, delays and extra costs.

A Will takes affect after you have died.

In making a Will you need to consider:

• Appointing an Executor
• Who you wish to receive your Estate
• Where your Will is kept
• Whether your Will can be challenged
• Whether your superannuation will form part of your estate on your death
• When you should review your Will
• The formal requirements involved in making a valid Will

We have an accredited specialist with our firm who is able to assist and guide you and provide advice in each of these areas.

A Will only takes affect after you have died. If you want someone to look after or make decisions about your finances whilst you are still alive and in particular looking towards the future in the event that you are incapacitated, you will need to make an Enduring Power of Attorney and an Appointment of Enduring Guardian.

An Enduring Power of Attorney is as important for your life planning as making a Will. Appointing an attorney gives a person your legal authority to look after your financial affairs on your behalf. This can occur in a variety of circumstances.

A person must appointment their Enduring Power of Attorney before they lose capacity. An Enduring Power of Attorney cannot make lifestyle, accommodation or medical decisions and is limited acting on matters relating to finances or property.

An Enduring Guardian is a person you appoint to make health, lifestyle and medical decisions for you when you are not capable of doing this for yourself. An Advance Care Directive sets out your directions, wishes and values that need to be considered before making medical decisions on your behalf.

For more information about Enduring Powers of Attorney or Appointments of Enduring Guardian please contact us.

When someone dies leaving property in NSW an application must usually be made to the Supreme Court of New South Wales for a Grant of Probate or Letters of Administration.  We assist clients in all aspects of Letters of Administration including:

• Obtaining Grants of Probate of a will of a deceased person. Probate means proof or validation of the will. Before a will can be said to be valid the Supreme Court of New South Wales receives evidence and, if satisfied the will is valid, issues a document referred to as a Grant of Probate. The Grant is made in favour of the executor. Where there is no will the Court grants Letters of Administration to an Administrator.
• Obtaining Letters of Administration for a deceased person where there is no will
• Administration of a deceased estate on behalf of the executor including liquidating the assets of the estate and distributing them to the beneficiaries and complying with all aspects of the law.
• Claims for commission by executorsVerifying and passing of estate accounts in the Supreme Court.

Disputes over wills or against the estate of the deceased person are dealt with mainly in the Supreme Court of New South Wales and often settled through negotiation, compulsory mediation or by determination by a Judge.  It can be stressful for an executor or a family member to be involved in any such claims.

Disputes vary over informal testamentary documents, will interpretations, testamentary capacity, family provision challenges to the wills, interpretation of the wills, matters relating to non performing executors, enquiry as to misuse of an Enduring Power of Attorney during the donor’s lifetime and many other types of claim.

The most common reasons for challenging a Will is:

Informal Wills: Certain documents (writings) of the deceased that do not conform with the formal requirements for a will can be accepted by the Supreme Court as legal wills and these are known as informal wills.

Examining whether a will is valid, including reviewing the mental capacity of the person making the will (testamentary capacity enquiry), whether they were unduly influenced by interested persons at the time of making their will, whether any fraud or undue influence has been committed

Contesting a will by a claim for family provision. This involves bringing a claim against an estate on behalf of clients who are entitled to provision or a greater provision out of the estate of the deceased. Certain persons may apply to a court for an order for provision (challenging the will) from the deceased’s estate (sometimes referred to as a family provision claim).

Defending a Will: This usually involves acting for an executor defending a claim that the will is not valid or defending a family provision claim. Defending an executor and an estate from a claim made by a person seeking provision or a greater provision from the deceased’s estate. It is the duty of the executor of the deceased’s estate to uphold the last Will and Testament. The law recognises the right of a deceased person to dispose of their property as they wish. It is the duty of the executor nominated under the will to uphold the will but subject to any reasonable claims for provision made by eligible persons who may challenge the will.