Wills/Testamentary Trusts

You should always consult your solicitor to draw a will properly, it will save your loved ones time and money after your death. 

There are formal requirements that must be met for a will to be valid. If the formal requirements are not met, the Supreme Court may still approve the will, but this leads to a great deal of unnecessary cost. 

You must have an executor. It’s important to always inform your nominated executor that you want them to hold that position and to tell them where the will is, which you can keep in our deed safe. 
Marriage automatically revokes a will unless the will specifically states that it is made in contemplation of your marriage.

A divorce after making a will revokes any gift to your former spouse.

A will may not cover how assets such as superannuation, life insurance policies are distributed. You should get advice about these issues when you have a will drawn.

You have the right to leave your assets on death to whomever you please, but remember certain persons have the right to challenge a will if they have been left out or if they think the provision made for them is inadequate.  (See our section on contested estates)

If you don’t make a will then your assets may not be distributed in the manner you wish.  The law sets out a strict regime for distributing assets of a person who dies without leaving a valid will (intestate).

A Testamentary trust is a trust that is set out in your will. It is usual to nominate a trustee in your will (it is often the executor who is made the trustee but it does not have to be).  A testamentary trust can be used if you do not want to make a gift outright to someone in your will but you want them to have the benefit of the property or the income from it.  The Trust will own the property and your Trustee must deal with the property in the manner you have set out in the will. This can arise in many circumstances, particularly if you want to make provision for a person suffering from a disability. 

A testamentary trust may in some circumstances provide taxation benefits and can also protect property from falling into a bankrupt’s estate. A testamentary trust is not required in all circumstances and you should take professional advice on this issue when you are having your will drawn up.


Powers of Attorney and Enduring Guardians

These are very important documents and you need proper advice before signing them. You should consult your solicitor to ensure they are tailored to your individual need and wishes.  They give you a choice as to who manages your affairs if you are no longer capable of doing it yourself, rather than those decisions being made by a government department. You will have the security of knowing that person(s) you trust will be able to act for you and look after your affairs. 

An Enduring Guardian gives the added security that the guardian you nominate will be able to make lifestyle decisions for you if you are no longer capable of doing so.  This can include decisions as to what health care you need. An enduring guardian can only be used if you have lost your capacity to make your own decisions. You can include in an Enduring Guardian, or in separate documents, an “advanced directive” or “living will” which tells your guardians of your wishes should you suffer from a terminal illness or be in a vegetative state. They can set out your wishes as to what treatment you want or whether or not you want to be provided with life sustaining measures if you are incapable of expressing you own views to your loved ones and doctors at that time.

A power of attorney can also be used in the same circumstances as an enduring guardian but, depending upon your needs, can be tailored to meet other requirements, such as if you have a physical disability or if you are out of the country for a period of time. It can also be used to ensure that provision is made for loved ones that depend upon you for support.


Contested Estates

If you have been left out of a will or if you believe you have been treated unfairly by a will, you may have a claim against the estate of the deceased. These types of claims are called Family Provision claims and are usually decided by the Supreme Court.

Time limits apply and only certain classes of person have the right to apply.

If you are successful the Court can order the executor of the estate to make provision for you or further provision from the assets of the estate.

These claims can be very stressful to all parties concerned and a dispute that has to be decided by a court can reduce the assets available to all parties.  Compulsory mediation to try and resolve these disputes before they get to Court will take place. We always encourage alternative dispute resolution and we can guide you through this and any ensuing court hearing if necessary.


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    Stephen

    Steffany

    Hannah

    Tiahna