Wills and Estates
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Our estate lawyers can assist you with all aspects of estate planning – creating your will, appointing a power of attorney, appointing a medical decision-maker, and estate litigation (such as contesting a will). Although it is not always a matter that is at the forefront of our minds, it is nevertheless, a Will is an important legal document that will deal with your estate when you pass away allowing a process called Probate to occur.
WILLS
Wills are distinct to every individual and require precise drafting to mirror your desires and prevent potential legal disputes. Several factors can complicate wills, such as owning real estate, having superannuation, blended families (especially with step-children or half-siblings), trusts, minors as beneficiaries, exclusion of individuals from the will, former spouses or de facto partners, and business ownership.Poorly drafted wills can lead to litigation and can cost your estate a significant sum of money upon your death, and can result in your wishes not being followed. We aim to make the will process as seamless and clear as possible for you, by using a 4-step process:
- Complete our required instruction form;
- Receive a copy of your draft Will;
- Consult with one of our lawyers;
- Finalise and execute your Will.
POWER OF ATTORNEY
A Power of Attorney is a written instrument that authorises another person to make legal choices on your behalf and represent you in particular circumstances. They can commence right away or become effective only when you’re incapable of making decisions due to sickness or injury. They can also grant broad authority or limit someone to making choices in specific situations. Broadly, there are 3 types of powers:
- General non-enduring power of attorney;
- Supportive power of attorney; and
- General enduring power of attorney.
A general non-enduring power of attorney permits someone to act on your behalf until you withdraw that authority or you become incapable of decision-making. For instance, if you plan to travel abroad for a few months, you can appoint someone to manage your business or handle financial transactions during your absence. This authority exclusively pertains to financial matters. On the other hand, a supportive power of attorney is suitable when you want to retain decision-making autonomy but may require some assistance. For instance, a supportive power of attorney might assist with dealings involving Centrelink, but it does not grant the authority to decide on selling your home. Meanwhile, a general enduring power of attorney, commonly associated with the term ‘power of attorney,’ empowers someone to make decisions on your behalf concerning personal and/or financial matters. Your appointed representative can make determinations regarding your place of residence, asset distribution, financial matters, and the type of support you may require. You have the option to define the scope of their decision-making authority and decide when it becomes effective, either immediately or in the event you are unable to make certain decisions. Importantly, it’s essential to note that a power of attorney does not encompass medical decision-making, such as choices related to life-support termination or medical treatments.
MEDICAL TREATMENT DECISION MAKER
In Victoria, you have the option to designate a healthcare decision agent if desired. It’s not mandatory, and you can maintain your authority over medical choices if preferred. Occasionally, situations may arise where injury or illness hinders your ability to convey preferences or decide on medical matters. In such scenarios, you might consider nominating a healthcare decision agent. This designation must be made before your capacity to make medical decisions diminishes. It’s advisable to select an individual who is familiar with and respects your preferences, possesses trustworthiness, and can advocate on your behalf. You have the flexibility to appoint more than one person and stipulate that they confer with specific individuals prior to making any decisions. If a medical decision-maker has not been appointed, someone may wish to apply to VCAT to be appointed as your guardian to make those decisions for you.
ESTATE LITIGATION
If someone passes away, there may be a dispute over their estate. We can assist you in challenging a will that you have been excluded from unfairly. We can also assist in defending a claim against the estate if you are the executor.
Claims can arise from:
A claim might arise due to a poorly written will, someone passing away without a will, someone being unjustly left out of the will, or what’s known as a Part IV or Testator Family Maintenance claim.
In Victoria, it’s mandatory for a will-maker to ensure proper provision for those they’re obliged to support or care for. If the will doesn’t provide sufficiently for such a person, a Part IV claim can be initiated, requesting the Supreme Court of Victoria to modify the estate’s distribution. Part IV claims are intricate, and we strongly advise seeking comprehensive guidance from one of our legal practitioners.
A will may also be challenged if the will-maker did not have testamentary capacity (i.e. they were not of sound mind), they were unduly influenced by someone, or if the executor has acted improperly.