Mar 13, 2020 | Wills and Estates
Writing a Will can ease the stress for both you and your loved ones when you die by providing you with peace of mind in making sure that your loved ones will be provided for when the time comes. However, often people wonder whether it is worth getting a lawyer to write a Will for themselves.
Are Lawyers Necessary to Write a Will?
While DIY Will kits can be found on websites, in post offices and sometimes from life insurance companies, it is not advisable to use these services.
Common mistakes made by people who choose to do their own Will include not signing the document properly, not having it witnessed correctly, and trying to bequeath assets or part of their estate when they don’t have full ownership over it. Not only does this create a massive conflict after the death, but it also takes longer to resolve, and more importantly costs more, and creates heartache at a time when you don’t need added stress in your life.
Step 1: Drafting Your Will
Though fees can vary, you can organise a fairly simple Will with a lawyer for approximately $500–$800. It is advised that you update your Will every five years, or when significant life events happen, such as buying a house, marrying, having children or a divorce.
Step 2: Consider All Possible Situations
Try to think of future scenarios that may impact you and your family significantly. It is often concerning to think about but it is vital to address possible scenarios where you and your named beneficiaries in your Will pass away at the same time, for example in an aeroplane or car accident. In this case you may want to name someone outside of your immediate family members, or a charity as an alternative beneficiary. By anticipating these alternative situations, you effectively have a number of alternative scenarios built into your Will.
Step 3: Select an Executor
It is important that you choose someone you trust to be the executor of your Will and who will be able to administer your estate according to your wishes. You must notify the executor that you have chosen them so they can be prepared. This is the person you name in your Will to administer your estate – your money and assets. That person hopefully understands your ‘view of the world’.
Step 4: Decide on Your Power of Attorney
Take this opportunity to discuss with us a power of Attorney. You need to prepare for a situation where you are incapable of making decisions due to being injured or sick or you’re not of sound mind. You can prepare for this by organising a Power of Attorney, so that the person of your choosing can act on your behalf to make financial and legal decisions. You can appoint more than one person as the Power of Attorney or put in place a substitute situation.
Step 5: Draft a Care Plan
In a care plan you are able to leave detailed instructions around your future care. You may have certain decisions already made around resuscitation on life support, pain relief and organ donation. Put your preferences in writing by completing an ‘Advance Care Directive’ and nominating someone to make medical decisions on your behalf if you are unable to do so. Some care plans are incorporated in a Deed of Enduring Guardianship.
Step 6: Store Your Important Documents Safely
Finally, it is advised that you draft a document with all your important passwords and account details. This may include bank account details, debts (including loans), investments, insurance and superannuation details. You may choose to store this information in an envelope with your Will, saying, ‘Open in the event of my death’, or something similar. We allow clients the opportunity to store important documents with us (in safe custody) without charge to them.
Further information
It is important to be fully aware of what it takes to make a Will and other related documents and obtain professional legal assistance to ensure your wishes are accurately represented in those documents. If you would like further information regarding Wills or general Wills/ Power of Attorney / Guardianship advice, please do not hesitate to contact one of our experienced estate planning solicitors on 9963 9800 or via email at law@etheringtons.com.au.
Jan 18, 2020 | Wills and Estates
Through persistence and dedication, Etheringtons Solicitors successfully challenged a Will and recovered a significant sum for the rightful beneficiary, a Children’s Charity.
A married couple with no children or relatives executed mirror Wills and left everything to a good cause – a charity for children. When the wife passed away, unbeknownst to the charity, the husband suddenly changed his Will (new Will) to leave everything to various people who “helped” him after his wife passed away, including a man who claimed to be his brother. Subsequently, the husband was uncontactable and abruptly moved in with his “brother”.
On behalf of the charity, Etheringtons Solicitors regularly checked the court website for probate notices and after twelve months of persistent checking, there was a probate notice for the husband. Etheringtons contacted the solicitor who drafted the new Will. Much to the charity’s surprise, Etheringtons was advised that the charity was no longer a beneficiary and that the funds from the estate had already been distributed to the late husband’s newly added beneficiaries.
Our principal knew something wasn’t right and decided to look into the matter further. Consequently, Etheringtons uncovered that at the time the new Will was executed, it was evident the husband showed signs of dementia and therefore lacked capacity to execute a new Will.
Etheringtons, on behalf of the charity, commenced proceedings seeking to revoke the grant of probate. Various medical documents of the late husband showed that he suffered from serious cognitive impairment and after the wife had passed away, his symptoms had deteriorated further. Not long after the proceedings were commenced, Etheringtons conducted a settlement conference with the charity, the executor and the new beneficiaries and as a result, successfully convinced the new beneficiaries to return close to one million dollars to the rightful beneficiary, the children’s charity.
If it wasn’t for Etheringtons’ perseverance, victory would not have been achieved for the charity and, more importantly, for the vulnerable children the charity helps.
If you would like to know more, please call us on (02) 9963 9800 or email law@etheringtons.com.au.
Dec 1, 2018 | Blog, Family Law, Wills and Estates
A Power of Attorney is a legal document that gives a trusted person the legal authority to act for you and to make legally binding decisions on your behalf. If you do not have a Power of Attorney then you should contact us and find out more.
Below are 6 top questions dealing with Powers of Attorney.
Circumstances when a Power of Attorney is particularly useful:
- to relieve yourself of the day-to-day
demands of financial paperwork and record keeping;
- as a safety net when travelling
or to allow someone to handle your affairs in your absence;
- to avoid burdening family or
friends with the responsibility of looking after your affairs; or
- if you are unable to manage your
prosperity or financial affairs.
Does the Attorney need to be a lawyer?
The person appointed does not need to have legal qualifications – you can appoint anyone, although deciding on the person to be appointed should be done with careful thought as you are providing them with considerable power.
An ideal attorney should:
- have integrity;
- be willing to act in that
capacity;
- have competence in areas of
relevance;
- be able to act in a
business-like manner;
- be able to spare the time
necessary for the task;
- live in the locality in which they
are to act;
- be agreeable to respecting the
confidentiality of the donor’s (the person giving the Power of Attorney)
affairs; and
- be impartial and have no known
conflict of interest.
Are there different types of Powers of Attorney?
Yes, there are two types:
A General Power of Attorney which is:
- only valid while you have legal
capacity;
- useful if you are going away for
an extended period and you do not want the authority to continue should
you lose legal capacity; and
- usually drawn up for a specific
purpose with specific or general powers.
And an Enduring Power of Attorney (EPA) which:
- continues to be valid even if
you lose legal capacity due to disability or illness;
- may empower your attorney to
make financial, property, lifestyle and health decisions;
- may be activated when required
or upon loss of legal capacity; and
- allows your attorney to commence
or to continue to manage your affairs even though you have become unable
to give lawful instructions.
Is it better to have more than one attorney?
We recommend that you do have more than one attorney, or a substitute attorney if the appointed attorney cannot act or continue to act, as it gives you more flexibility.
Some examples to illustrate why it is helpful include: siblings who should act together, or you are unsure if one should act on their own, or to allow the power to continue if one attorney dies or cannot act. This also applies if you appoint a spouse and a child as an alternative in the event the spouse dies. You can also appoint attorneys to act “jointly” (this means they must agree on everything) or “severally” (this means one of the appointed persons can make decisions alone).
Should I pay my attorney?
This is not necessary to give legal effect to the power, and for a financial power would normally only be considered if the attorney is a professional.
How do I know if the person has sufficient mental capacity to make a power of attorney?
There is no simple formula, but in general terms they must be able to:
- understand the major
consequences of a decision;
- take responsibility for making
that choice; and
- make a choice based on the risks
and benefits that are important to them.
If there is any doubt about capacity, it’s best to get in touch with a medical doctor and ask for a written opinion. Remember, different powers require different levels of understanding. If a medical opinion about capacity is sought, it is wise to have the Power of Attorney signed on the same day as you get the medical report so there can be no subsequent claim that the appointment was invalid.
In our view many clients do not recognise the possible benefits (and pitfalls) of Powers Of Attorney.
The need fora Power of Attorney can be numerous. In case of accident, sudden illness,planned or unexpected absence, or when you just can’t cope, you may need someone to manage your financial affairs. So it doesn’t matter if you are old or young, in business or not, if you do a lot of travelling or not, there are great benefits in having a power of attorney.
To find out more about Powers of Attorney and their benefits call us on (02) 9963 9800 or email law@etheringtons.com.au.
Aug 18, 2017 | Wills and Estates
Can You Put Anything You Like in Your Will?
When it comes to writing your own will, you may think you should be able to divide your assets however you like. This includes dividing assets based on emotions at the time of writing the will. For example, favouring one child over another because of their actions.
While it may not be unlawful to leave a part of your estate to someone, it may be what the reasonable person considers ‘unfair’. The law takes into account moral responsibilities owed to family members. Although they are your assets to divide, these laws protect your family from being unfairly disadvantaged.
Contesting a Will
Contesting a will is an option if you feel the assets have been unfairly allocated. The law recognises that sometimes you might need to make a claim against a deceased person’s estate. The court can make orders to allow you to have more than what is specified in the will. The court determines how much more is appropriate.
Of course, that may seem unfair to some people, but that is what the law provides. It considers what certain people should have been given by their wills by taking into account factors such as:
- Whether the person making a claim is an eligible person (as defined by the law);
- Whether there are circumstances which justify the making of orders allowing a claim; and
- Whether there has been adequate provision made in the will for the proper maintenance, education or advancement in life of that person.
Factors for Consideration
The court will also consider several factors when making orders to allow a portion of a deceased’s estate to be given to the claimant:
- The nature and quality of the relationship between the person making the claim and the deceased;
- The means and needs of the person making the claim compared with the size of the estate; and
- Other factors such as:
- Whether and to what extent the person making the claim contributed to the property and welfare of the deceased person;
- The character and conduct of the person making the claim before and after the death of the deceased;
- Circumstances before and after the deceased person’s death; and
- Any other matters the court considers relevant including things which were in existence before or after the deceased person’s death.
It is clear that the law prioritises fairness in the distribution of an estate. However, what the court considers ‘fair’ will vary, depending on your individual circumstances. Please get in touch if you have any questions about your will and estate.
Jul 23, 2017 | Wills and Estates
What is a Power of Attorney?
An attorney is someone who has power to make decisions on your behalf. They are an agent for your financial affairs. A Power of Attorney is the legal document outlining their responsibilities. This document can be prepared by a wills and estates solicitor, who can also provide advice on choosing a Power of Attorney.
What You Need to Consider when Choosing a Power of Attorney
Having a Power of Attorney means someone else can make several types of life-changing decisions on your behalf. Therefore make sure you consider the following items.
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Choosing the Right Person
Your first instinct when nominating an attorney may be a close relative or friend. However, it is important to consider that they may have to make very tough decisions in the future. Choose someone who is mature and responsible. You should select someone you trust to put your own interests above their own.
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General Power of Attorney
A Power of Attorney is for a specific task and/or with a specific expiry date. A general Power of Attorney allows you to appoint someone to attend to financial and property related matters on your behalf. The Power of Attorney lasts while you have capacity. It also lasts for the duration of which the specific purpose is to be done. A common example of this is when a company appoints one director to sign all documents on the company’s behalf. Likewise if you appoint your solicitor to sign a contract on your behalf, you are appointing the solicitor as an attorney.
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Enduring Power of Attorney
There may come a time in your life where you no longer have the mental capacity to make decisions. An Enduring Power of Attorney appoints an someone to attend to your personal financial and property related affairs once you lose mental capacity. The document must be prepared before you lose capacity, and can include things like selling your properties and managing your finances. An Enduring Power of Attorney is not used until you lose capacity.
To discuss your specific needs when choosing a Power of Attorney, and to prepare the documents that best suit you, please get in touch.
Feb 16, 2016 | Wills and Estates
Superannuation benefits are not automatically assets that fall within the estate of a person after their death. Without additional and proper written directions, what happens to a person’s super after death is decided by the Trustee of that person’s super fund. With well over half a million self-managed super funds (SMSFs) now registered in Australia, more and more people have direct control over their superannuation as Trustees of their own funds. Without careful consideration and planning, your superannuation funds may not end up where you want them to after your death, as was recently the case in Western Australia.
In that case, Ioppola v Conti, a husband and wife were the sole members of a SMSF. The wife in her Will, explicitly stated that her substantial superannuation funds were to be divided between her children and not her husband. She did not have the proper written documentation prepared in her SMSF to reflect this. Upon her death, her husband, despite the Will, paid all his wife’s funds to himself. The SMSF’s trust deed gave the trustee broad discretion to pay that benefit to any spouse, child or other person who, in the opinion of the trustee, was dependant on her at her death.
The children challenged the actions of the Trustee husband in the Supreme Court of Western Australia arguing that as executors they should be appointed as a joint trustee of the SMSF along with their father, to have some measure of control over the distribution of their mother’s funds. This argument was rejected on the grounds that while superannuation legislation does allow for such an appointment, it is not mandatory. The children also argued that the Trustee did not act in a bona fide manner as required by the SMSF’s trust deed. This argument was also rejected on the basis that the Trustee was entitled to ignore the directions of the Will when making its decision
Unfortunately the final score in this match was SMSF 1 Will 0. The husband was able to retain the superannuation and it did not go to her children in accordance with the mother’s Will.
This situation would not have arisen if the wife had a binding death nomination or a death benefit agreement in place at the time of her death. A binding death nomination must be renewed every 3 years while a death benefit agreement is permanent until revoked. A solicitor who is preparing a Will for you can identify issues such as this and ensure that your true intentions are properly documented. Whilst we did not see in this case if the solicitor had prepared her Will, if a Will is prepared by a solicitor and it falls short of doing the job intended, there are also options of claims being made against the solicitor for negligence. The above illustrates why it is best not to use DIY Will kits and to get proper advice, as it gives your loved ones proper protection and gives you peace of mind.
