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 are highly unique to each person, and need to be carefully drafted to ensure they reflect your wishes and avoid future litigation. Wills can be complicated by a variety of factors, including, owning real property, superannuation, blended families (particularly where step-children or half-siblings are involved), the creation or existence of trusts, having children under the age of 18, excluding someone from the will, having an ex-spouse or ex-de facto partner or owning a business.
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:
A Power of Attorney is a document that allows someone else to make legal decisions on your behalf, and act for you, in certain situations. They can start immediately, or only begin once you are unable to make decisions for yourself due to illness or injury. They can also be wide-ranging, or they can allow someone to make decisions only in relation to specific matters. Broadly, there are 3 types of powers:
A general non-enduring power of attorney allows someone to make decisions for you until you revoke that power, or you are unable to make decisions anymore. For example, if you are going overseas for a few months, you may appoint someone to run your business while you are gone, or to make payments on your behalf. It only applies to financial matters. A supportive power of attorney is for when you wish to still make your own decisions, but you might need some help. For example, a supportive power of attorney might deal with Centrelink on your behalf, but they cannot decide that you need to sell your home. A general enduring power of attorney is what most people think of when they hear ‘power of attorney.’ It is a document that allows you to appoint someone to make decisions on your behalf for personal matters and/or financial matters. Your attorney can make decisions about where you live, how your assets or money is distributed, or what kind of support you might need. You can limit what decisions they can make if you wish, and you can choose when the powers start – either immediately, or upon you becoming unable to make certain decisions. A power of attorney does not cover medical decision-making, such as deciding to terminate life-support or provide other medical treatment.
In Victoria, you can choose to appoint a medical decision-maker if you wish. You do not have to, and you can continue to make your own medical decisions if you wish. Sometimes, you may have an injury or illness that stops you from being able to express your wishes or make medical decisions. In those circumstances, you may wish to appoint a medical decision-maker. You must make this appointment before you are unable to make medical decisions. You should choose someone who knows and respects your wishes, is trustworthy, and that is able to communicate on your behalf. You can appoint more than one person, and you can require that they consult with particular people prior to 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.
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:
The claim may arise because of a poorly drafted will, someone dying intestate (i.e. with no will), someone being unfairly excluded from the will, or what is known as a Part IV or Testator Family Maintenance claim.
In Victoria, a will-maker is required to leave adequate provision for persons they have an obligation to support or provide for. If their will does not make an adequate provision for that person, then a Part IV claim may be made, asking the Supreme Court of Victoria to make an order altering the distribution of the estate. Part IV claims are complex, and we recommend getting detailed advice from one of our solicitors.
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.