Wills & Estates

Estate planning is essential to provide clarity and peace of mind for you and your loved ones. We have assisted many clients in this area and have drafted numerous Wills and other estate planning documents. We offer competitive pricing and sound advice. We are also prepared to visit clients in the area who are unable to travel to our office.

What is a Will?

A Will is a written legal document that states your wishes as to what happens to your property (your ‘estate’) after your death. It gives instructions for the person or organisation distributing your property about how this is to happen.

Who can make a Will?

Anyone aged 18 years and over can make a Will, so long as they have the mental capacity to understand what they are doing. People under 18 can only make a valid Will if they are married or have a court order to authorise making a Will.

What does a Will cover?

A Will usually contains details of how a person’s assets, such as houses, cars, money, shares, cash will be handled upon the person’s death. It also appoints one or more persons as executors to administer your estate when you die.

Wills should also specify the rights and powers of trustees, a list which specifies how particular belongings should be dealt with. A Will can also contain provisions regarding how the deceased person’s remains are to be dealt with, organ donation and who will act as a guardian for any children of the deceased.

Legally valid Wills

For a Will to be formally valid it must be in writing, intended to be your Will and signed by you on each page, in front of at least two witnesses. The Will must also be dated at the time of signing.

If a person making a Will does not freely and voluntarily make their Will or have testamentary capacity with the intention to make a Will, it may be invalid.

Powers of Attorney and Enduring Powers of Attorney

When making a Will, you might also consider executing a power of attorney. A power of attorney is a legal document you can sign to appoint somebody you trust to manage your financial affairs if / when a specified event occurs and subject to certain conditions. This is very useful if you are planning to go overseas, suffer from poor health, or reach a stage in your life when you need more assistance with these things. An enduring power of attorney goes a step further, by giving your attorney authority to manage your affairs indefinitely if you lose capacity.

We can explain the purpose and function of these types of documents and provide guidance on what is most suitable for your circumstances.

Challenging the validity of a Will

Some grounds for challenging a Will include:

• Undue influence – where a party (usually a beneficiary) used an unreasonable amount of influence over the deceased, which resulted in them preparing their Will in a certain way to unjustly benefit that party.
• Allegations of fraud and/or allegations that the Will (or part of it) has been forged, for example, forged signature of the deceased, or claims that the Will is fake.
• The deceased lacked the necessary testamentary capacity (mental capacity), to make the Will at the time it was executed. These claims will often arise where the deceased was elderly and/or sick for substantial periods of time or suffered from dementia or another type of memory loss.

Other types of estate litigation

Other reasons why a Will may be contested include:

• that the deceased’s Will contains obvious errors or mistakes;
• disputes between beneficiaries as to how the deceased’s estate should be administered;
• one or more of the beneficiaries would like the executor to be removed and replaced by another

Family Maintenance Applications

If you believe that you were not adequately provided for under the Will of a deceased person, and you are eligible to do so, you may be able to bring a family provision claim. A successful claim may result in an adjustment to the terms of the Will in your favour, either by a negotiated settlement or by court order. These claims can be complex and strict timeframes apply. We can advise on your eligibility to make such a claim and the likelihood of your claim being successful. If instructed, we can negotiate on your behalf in an effort to achieve a fair and reasonable outcome.

Estate litigation can be complex and emotional, especially where family circumstances are complicated and the disputes that arise may have been years in the making. We have extensive experience in this area.

If you need any assistance, contact us at [email protected] or call (07) 3255 6327 for expert legal advice.