What do Wills, Power of Attorney, Enduring Guardianship and Probate all mean?

Wills and estate planning is a task that can feel overwhelming, especially when we haven’t heard of the terms such as Wills, Power of Attorney, Enduring Guardianship and Probate.  Allow One Law to simplify these tasks and define what each term means:

A Will

A Will is a legal document that formalises your wishes in relation to your assets and possessions. A Will appoints your Executor, who is person responsible for administering the deceased person’s estate, ensuring that any debts are paid, and distributing the remaining assets as detailed in the Will. A Will also appoints your beneficiaries to receive your assets.

Power of Attorney

A Power of Attorney is a legal document providing someone (Attorney) the authority to make legal and financial decisions on your behalf. The Power of Attorney is beneficial if you are travelling overseas or unwell, allowing you to still attend to your matters such as signing documents or dealing with property. There are two types of Power of Attorney:

·General Power of Attorney – assists with decisions to be made on your behalf while you have mental capacity to do so.  It ceases when you lose mental capacity.

·Enduring Power of Attorney – assists with decisions to be made on your behalf, before and after you have lost mental capacity to do so.

Enduring Guardianship

An Enduring Guardianship enables you to designate a trusted individual (Guardian) to make vital decisions about your medical health, dental health and lifestyle. This will only apply once you are unable to make important decisions and will continue as longer you require unless:

·You cancel or revoke it, before you lose mental capacity

·Your guardian resigns or unable to be carry out the role

·Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court revokes or changes the appointment.

Probate

Probate is a legal process that validates the Will of a deceased person so that their wishes can be carried out by any executors named in the Will. An application for a Probate or Letters of Administration is made where the deceased person has assets. There are two types of applications you can make to the Supreme Court of NSW:

·Grant of Probate – a legal document that authorises an executor (or executors) to manage and distribute the estate of a deceased person in accordance with the provisions of the deceased’s will; and

·Grant of Letters of Administration – a legal document that authorises an administrator (or administrators) to manage the estate of a deceased person in accordance with the law. This applies where the deceased person did not have a Will.

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Challenging a Relative’s Will

Simply being treated unfairly under a relative’s will is not grounds for you to challenge the testator’s will. However, if you believe that a close relative was forced into doing a will or they were forced into making an amendment to their will (called a codicil) by someone you may have grounds to challenge that will.

All testamentary documents (such as wills or codicils) only come into effect after the person’s death. Where the validity of a testamentary document is in question, the most important question for the court to determine is whether the document was the last will of a free and capable testator.

Challenges are generally limited to the following grounds:

• If there are allegations that the will or codicil was not executed in a manner required by law
• If there are allegations that the testator lacked testamentary capacity
• If there are allegations that the deceased did not know and approve of the document.
• If there are allegations that the document was obtained by undue influence (in the sense that the person was forced)
• If there are allegations of fraud
• If there are allegations that the document has been revoked. This is usually established by a later testamentary document or conduct of the deceased.

It is important to understand that suspicious circumstances surrounding a testamentary document of themselves are not enough. There must be good evidence to establish a fact that the will or codicil was not made by a testator who was free and capable of giving such instructions.

In matters involving challenges to a testamentary document, the court will usually make orders for the parties to attend a mediation. The purpose of mediation is for the parties to see if they can come to an agreement without the need to proceed to an expensive court hearing. If mediation has already been attempted, then court may by-pass this stage.

If you believe any of the grounds explained above may apply in your case, contact us today for more information.

Have you been Treated Unfairly under a Will?

A testator (person who has done a will) can leave their property (or estate) to whoever they like. However, this leads to instances where people closest to the testator are left with little to no inheritance under a will.

There are many reasons for this but usually the most common is disputes between members of a family, such as siblings or spouses.

If you are a member of a family and feel that you have been treated unfairly under a will, you may have grounds to bring a Family Provision Claim against the person who has left very little or nothing for you after their death.

What is Family Provision Claim?

The law recognises that people can leave their assets to whomever they wish to do so after they die. However, the law imposes a moral obligation on people to provide adequately for others in their lives after their death.

This is usually the person’s surviving spouse and children. It can also include those that were dependant on the deceased.

In rare cases, it can also include a former spouse and also a person with whom the deceased lived with.

The persons described above may be considered ‘eligible persons’ for the purposes of a Family Provision application. In determining an application, the court takes a number of others matters into consideration before making a decision.

If you think that you have been treated unfairly under a will and believe you may be an eligible person, you have 12 months from the date that the deceased died to make an application to the NSW Supreme Court for a Family Provision order.

Call us today to find out more.

What Happens to your Will after your Death?

Every properly drafted will should nominate an executor and also another executor in the alternative in case the first one is unable or unwilling or unable to act.

After your death, your executor who is now your legal representative, is responsible for obtaining what is called a ‘grant of probate’. Probate is necessary for essentially two main reasons:

• To obtain title to your property; and
• To have authority to deal with your estate

Probate is granted by the NSW Supreme Court to the executor. It is important to note that until probate is granted, your executor is not allowed to deal with your estate or do anything including making payments to anyone. If your executor begins to administer your estate prior to probate being granted, they may be held personally liable for any loss or damage suffered by anyone including any beneficiaries.

Applying for a grant of probate is technical and should not be attempted without professional advice. There are also time limitations that apply for the Supreme Court from the date of death and missing them can present problems for executors.

If you are an executor of a will and need help, contact our office for a free initial consultation.

We can advise you whether a grant is required or not. If the circumstances of the estate indicate that a grant is required, we will give you the right advise to ensure that the administration of estate takes place in a timely fashion, and the rights of beneficiaries under the will are protected.

Superannuation Benefits and your Will

By the time many Australians reach maturity or retirement age, the balance of their super is often a decent sum. A common mistake in many wills drafted by non-professionals is to include instructions on who is to receive super money after the person dies.

It is important to note that super is managed by a Trustee on behalf of the fund. The Trustee makes their decision on who is to receive the death benefit of a member who has died in accordance with legal guidelines as well as any binding death nominations that the member provided to the fund before they died. If the member had completed a binding death nomination form and nominated any person(s) as their benefactors, then the Trustee must distribute the death benefit in accordance with that nomination.

But if there is no binding death nomination form, or it has expired because it was done more than 3 years ago, then the Trustee has discretion to give the death benefit to any persons they deem appropriate. As a result, super does not form part of your estate and any instructions in your will as to who will benefit from your death benefit is invalid.

If you or a loved one have a will that gives instructions on who is to benefit from your super and you are unsure whether a binding death nomination form has been completed with your super fund, it is crucial that you speak to one of our lawyers today to make sure proper arrangements can be made (including changing your will if necessary) to ensure your super is dealt in a way that you want it.

What is a Will?

A person (called a testator or testatrix) leaves a will when they make a written declaration about what they want done with their property and assets (called their estate) after their death.

Your will does not have to just deal with your estate. It can include other wishes like who will look after your children until they reach 18, and whether you like to set up trusts to benefit certain people in your life.

Many people have already done a will at some point in their life, whether on their own or with the help of a professional. However, not many people are aware that whilst the legal requirements of a valid will are simple under the Succession Act 2006 (NSW), these requirements can easily be overlooked or challenged by others after their death leaving their estate subject to family disputes and legal battles. Your will should also include a revocation clause to clearly indicate that you want your will to operate as your final testamentary wishes. This removes doubt on any old documents that may also be considered a will or an informal will.

Regardless of your age, If you have any assets and want to make sure that those assets are dealt with in a particular way, it is important that you speak to a lawyer who specialises in Estate Planning and get them to prepare a professionally drafted will.

Our lawyers at One Law can also advise you on other Estate Planning documents to ensure that you are protected if adversity strikes.

Letters of Administration

The death of a family member or loved one a truly emotional time, and often with their death comes unexpected burden.

On one particular instance, our team of specialist lawyers acted for an estate where the deceased died intestate (passed away without having made a will). The gentleman however, left a suicide note intended to be his ‘final will & testament’. In that note, the deceased named our client Bella as the executor of his estate and residuary beneficiary, meaning she was to receive any property that was not specifically left to anyone else. Also included in his note, the deceased named individuals to whom he owed money to.

Apart from requesting that the court grant probate of the suicide notes as an informal document, we were required to obtain the consent of all those named on the suicide notes as they were deemed to be ‘affected persons’ for the purpose of the Supreme Court Rules. Time was of the essence in this matter as the estate owed considerable debts to mortgagees on properties which were attracting interests.

We were able to draft and execute proper documents with respect to all affected persons to obtain their consent so that the probate application can be granted for our client and she could administer the deceased’s estate as per his final wishes.

In instances such as these it’s important to speak to the dedicated team of specialists at One Law to ensure that not only are your loved ones best interests maintained, but also that unexpected financial costs are kept to a minimum.

Will

Writing a will can be a challenging and emotional experience, and there are often may parties that are affected by the decisions you make in your will. One such example of this is the story of Anita and Ellen.

Anita and her sister Ellen came to our office to seek guidance in preparing Anita’s will.
Whilst in many instances, the presence of a support person is helpful, certain events raise concern because it appeared in this particular situation that Anita seemed swayed and pressured by her sister Ellen. We tried seeking instructions from the Anita on her own, but as hard we tried, Ellen would not leave her side.

To avoid a family conflict, we advised both Anita and Ellen that under the law (Succession Act 2006 NSW), a beneficial disposition in a will, whether in a gift or otherwise, becomes void if the person receiving that gift is present or is a witness to the will when it is made.

It was only then that Ellen stepped back and allowed us to speak in private with Anita. During this discussion, the team discovered that Anita did not want to leave her sister Ellen anything in her will, as she had three children of her own, and preferred to leave her assets to them instead.

Anita had a sizeable estate, and we were concerned that there might be future claims to dispute the will. To minimise future claims, we advised her that we should do a detailed affidavit for her and leave it on the record to explain the reasons for her decisions under the will.

This is a perfect example of ensuring will drafting is done right from the start as to minimise any future conflicts, will disputes or family provision claims that can really exhaust the assets of the estate and leave those who are rightfully entitled with nothing. That’s why it’s crucial that when preparing you will you speak to the team of experienced Lawyers at One Law Group.