Wills, Estates & Elder Law

Our Wills, Estates & Elder Law team can help you plan for the future, even though none of us know what the future holds for us. We can help you with all aspects of estate planning, including creating, changing or challenging a will; establishing a power of attorney; organising guardianship; and advising you on what you need to know when you are ready to move into a retirement village.

Estate planning

It’s impossible to see what exactly the future holds, so how do you plan for the unknown? The good news is that legal documents can provide a level of certainty around some aspects of the future.  To ensure that your affairs are managed as you wish, we can help you plan for yourself (with a power of attorney) and for those that are dear to you (through your will).

Proper estate planning involves many different considerations, such as:

  • carefully reviewing all estate assets
  • carefully reviewing all non-estate assets, such as superannuation, life insurance and jointly held property
  • considering the impact of any family-owned business, company or family trust
  • considering the circumstances of your intended beneficiaries, including infants and other vulnerable beneficiaries
  • considering financial and other implications of the proposed plan (including tax effectiveness and protecting family assets, where possible).

In creating this plan we will work with you and your other trusted advisors, such as medical, financial and legal advisors, to ensure we create the plan that’s right for you.

Acting as a legal personal representative (administrator, executor and/or trustee)

If you are acting in your appointment as the executor or administrator of an estate, you’ll need to administer the estate in a timely fashion.

Distributing the assets as set out in the will. This can be a long and complicated process, but we can guide you through the required steps as you carry out your duties, easing the burden for you in these difficult times.

Family and friends sometimes disagree over assets of a loved one who has passed away. Although this can happen when a will is available, it’s more likely when a DIY will kit was used or no will exists. We can assist, advise and advocate for you as you manage an estate dispute.

Creating a will

Every adult should have a will and we can help you in drafting and finalising a legally effective will. It’s also possible for a child to have a will in some circumstances. Having a will helps to ensure that your estate is left to the people you care about and for whom you wish to provide. If a will is poorly prepared it can create problems for your estate (see Estate disputes and Challenging a will below).

Choosing the right will

A will can be a simple or complex document. It can give ‘absolute’ gifts or incorporate one or more different types of testamentary trusts to enable inheritances to pass through a trust structure. A trust is an ownership structure whereby the assets of the trust are owned by the trustee but held for the benefit of individuals (the beneficiaries). There are different types of testamentary trusts, such as:

  • discretionary
  • protective
  • charitable.

We can assist you in working out what type of will or gift structure is appropriate for your circumstances so that what you intend in your will eventuates.

Find out more about testamentary trusts here.

Changing a will

You should review your will with the assistance of a solicitor, every two to three years, when a major event occurs in your family, or when there are significant changes in your assets or the taxation law.

You may need to update your will if, for example:

  • your intentions have changed
  • you’ve disposed of property that you had designated to a specific person under the will (or that property changes its character)
  • you’ve advanced funds or property to a beneficiary (as either a loan or a gift)
  • you marry or divorce, enter or terminate a relationship
  • you change your name or anybody named in the will changes theirs
  • an executor dies or becomes unwilling to act as an executor or becomes unsuitable
  • a beneficiary dies, or you wish to remove them from your will
  • a child of yours is born or dies, a child is adopted or fostered, an adopted or fostered child dies or a fostering terminates.

Testamentary capacity

There are a number of formal requirements to ensure that a will is valid – of which testamentary capacity is one. This means that a person must understand:

  • the nature and effect of making a will
  • what their assets are
  • who might have a claim on their estate.

If it is proved that a person did not have testamentary capacity at the time of making their will, for example by medical evidence, then the will is not valid. We can provide advice where testamentary capacity is disputed.

Powers of attorney & guardianship

Powers of attorney are governed by the legislation in each state and territory. This means that there are different documents and rules depending on where you live. The discussion below relates to the ACT; however, we can also assist you with the preparation of NSW documents and explaining their operation across different jurisdictions.

General powers of attorney

General powers of attorney are normally used for a specific purpose and are only valid while you have legal capacity. For example, you may appoint someone else to be able to act on your behalf in relation to the purchase of a property because you know that you’ll be overseas or otherwise unavailable to complete the purchase yourself.

Enduring powers of attorney

An enduring power of attorney (EPA) gives you the power to specify a person (known as an attorney) who will manage your affairs and make decisions on your behalf if you are mentally or physically incapacitated. This can occur as a result of conditions such as brain damage, dementia, unconsciousness, Alzheimer’s or serious injury. An EPA is needed as your family members don’t automatically have the right to make decisions for you while you are cognitively incapacitated.

Your attorney can make decisions on your behalf regarding financial (including property) matters, personal care or health care matters in the event of incapacity. Whether you are incapacitated is a finding made by a suitable physician.

You can appoint your attorney to make decisions on property matters effective immediately, irrespective of whether you’re cognitively incapacitated. For example, you can state that your attorney’s authority regarding property matters comes into effect upon signing the document or in the event of physical incapacity.

An EPA allows you to impose certain directions, conditions or limitations on the ambit of the attorney’s discretion. For example, you may give directions concerning life support (or lack thereof). Or you could specify your preferences about your residential arrangements if you’re unable to live independently. Importantly, you can also limit the types of decisions your attorney can make on your behalf.

You can read more about EPAs and elder abuse here.

Tribunal proceedings

Where there is no EPA in place and an adult’s decision-making ability is impaired, it is most often the case that an order by the ACT Civil & Administrative Appeals Tribunal (ACAT) will be sought by the person seeking the authority to act on behalf of that ‘protected’ person.

A manager is typically appointed to look after financial affairs for the protected person whereas a guardian is typically appointed to make decisions regarding day-to-day, welfare matters for the protected person (e.g. decisions as to where the protected person will live).

In addition to appointing managers and guardians, the ACAT can make orders as to:

  • revoking/altering an existing EPA
  • resolving disputes between attorneys, financial matters, guardians and family members concerning the protected person
  • directing a particular course of action with respect to the protected person.

If you require representation and or advice concerning the tribunal process, we can assist you. 

Probate & estate administration

The basic duties of an executor are to ensure that the wishes of the deceased are carried out. They do this by listing and managing the assets and liabilities of the deceased and then distributing the estate to the beneficiaries as set out in the will. The administration of the estate can be a long and complicated process. We can guide you in the execution of your duties, including obtaining all necessary information about the estate assets and liabilities and obtaining grants of probate or letters of administration.

Grants of probate and letters of administration

A grant of probate is a document issued by the Supreme Court that establishes that a person’s will is in order and that the executor named in that will has the power to look after the deceased person’s affairs. Find out more about probate here.

A grant of letters of administration is issued by the Supreme Court in circumstances where either the deceased died intestate (they didn’t leave a will) or where there was a will but the deceased either didn’t appoint an executor in the will or the deceased did appoint an executor but the executor has either died or renounced probate. Find out more about letters of administration here.

Some estates will require the grant of probate or grant of letters of administration to be resealed in another jurisdiction. We can assist you in applications for resealing grants.

Once a grant of probate or letters of administration have been obtained, or in estates where a grant isn’t required, we can help executors and administrators to administer the estate. Administering an estate includes activities such as closing the deceased’s bank accounts, collecting and protecting estate assets, selling or transferring shares and/or properties owned by the deceased, attending to any debts or liabilities, finalising the deceased’s taxation affairs and making distributions to the beneficiaries in accordance with the will or in accordance with the intestacy laws.

We can assist you in both ACT and NSW probate applications and ACT and NSW reseal applications.

Estate disputes

Disputes and litigation over estates are becoming increasingly common. Sometimes family members have unanswered questions and concerns after the death of a loved one. Our team of estate dispute lawyers is experienced in defending contested wills and supporting the executor in their duty to defend the will and fulfil the wishes of the deceased. We can assist you in both ACT and NSW contested estate matters.

One of the major reasons for estate disputes is the lack of a valid will. Ensuring that your loved one has a valid will is not enough to prevent a challenge but clear and well thought-out intentions do assist in the process.

We have shared some of our expertise about dispute resolution here.

Challenging a will

There are many factors worth considering when you are reviewing the will of a deceased family member. These include whether it makes adequate provision for family members and whether the deceased had testamentary capacity when the will was entered into.

Similarly, grounds for setting aside a will may be established if it can be shown that the deceased person was under undue pressure to make their will in a particular fashion. This is a complex area of the law, and each case needs to be considered individually.

A will may also be challenged on the grounds that it does not meet the formalities prescribed by the relevant legislation. If you have concerns about the legal validity of a will we recommend you seek legal advice.

In some instances, even a will that doesn’t adhere to the requirements may be upheld by the Court. Read more about this here.

Family provision claims

Certain people are eligible to challenge a will by making a family provision claim. This will depend on their relationship with the deceased person. This is a complex area of the law that varies between each state and territory. We can help you in both ACT and NSW family provision claims.

In the ACT, if you wish to challenge a will because you weren’t made a beneficiary or because you consider you weren’t adequately provided for in the will, you may do so under the provisions of the Family Provision Act 1969. People who may be eligible to challenge a will include a spouse, domestic partner (including partners in a de facto or same-sex relationship), or a child of the deceased. Parents, stepchildren and grandchildren of a deceased person may also be entitled to make an application, provided they meet certain criteria.

You can read more about family provision claims here.

International issues

International issues in estate planning are becoming more prevalent. It is not just high net-worth individuals who have assets or interests outside of Australia. If you have assets both in Australia and abroad, we can assist you with your estate planning needs.

In some circumstances, it may be appropriate to have two wills – one to deal with Australian assets and another for international interests. We can work in conjunction with lawyers in other countries to ensure international estate planning needs are met.

Having two wills in two different jurisdictions is not common, but is possible and appropriate in certain circumstances. If two wills are being prepared, it’s important to discuss this with us so that we can avoid potential traps. For example, it’s important to ensure the wills in the different jurisdictions don’t inadvertently revoke each other.

Elder law

Elder law is a dynamic area of the law that aims to meet the needs of older people and ensure that they receive appropriate legal advice and representation. Elder law now attracts significant attention, particularly since the establishment of the Royal Commission into Aged Care Quality and Safety in October 2018.

Whether you are an older person, or a family member of an older person, our elder law experts can help you navigate the different areas of the law, and help you deal with situations as varied as establishing an enduring power of attorney, moving into a retirement village and elder abuse.

Our team can help you with concerns you might have about your independence, your property and money, your family or the legal system.

Elder abuse

A distressing area of elder law is elder abuse, which is a global issue affecting the health and human rights of millions of older people across the globe.

In recognition of the significance of this issue, the United Nations has designated 15 June as World Elder Abuse Awareness Day: a day for the world to voice its opposition to the abuse and suffering inflicted on our older generations.

What is elder abuse?

The World Health Organisation (WHO) defines elder abuse as ‘a single or repeated act, or lack of appropriate action, occurring within a relationship where there is an expectation of trust, which causes harm or distress to an older person’. This is the most widely accepted definition of the issue.

At the core of this definition is the term ‘expectation of trust’. The abuse is not committed by unknown perpetrators but rather family members, friends, paid carers and paid professionals of older people.

Elder abuse can include:

  • Financial and material abuse
  • Neglect, which can be intentional or unintentional
  • Abandonment
  • Physical abuse
  • Sexual abuse, including non-physical actions such as obscene language
  • Chemical abuse, including the inappropriate use, underuse or overuse of prescribed medication
  • Psychological and emotional abuse, including serious loss of dignity and respect.

Elder abuse is not always easy to identify, but there will generally be some behavioural changes in the person being abused. Some things to look out for are social isolation, a rapid decline in health, significant bank withdrawals or changes to wills.

Moving into a retirement village

If you decide to move into a retirement village, the contracts can be overwhelming and confusing. Operators use a variety of occupancy options; it’s important to be aware of the legal consequences involved in retirement village contracts.

We can explain the effect of the arrangements that you’re considering will have on you, your assets and your finances. Importantly, few retirement village contracts create a capital investment for you and each will affect your entitlements differently.

We can:

  • provide advice on reviewing licence agreements, loan agreements, subleases and other contracts, such as car park licences
  • help you with the settlement process
  • explain departure fees and how operators calculate them
  • review the departure fee calculations provided by the retirement village at the conclusion of the residency.

You can find out more about the different retirement village contracts in the ACT and learn the top tips when evaluating retirement villages here.

Meet your Wills, Estates & Elder Law team

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Managing a deceased estate with 3 executors was so much easier than I expected. Thanks for all your assistance with our estate matters, Tanya Herbertson.

Your efforts were totally professional and I would unreservedly recommend SHG to others.

Warwick G (Wills & Estates)

7 May 2018

We recently updated our wills and end of life wishes with Snedden Hall & Gallop.

We would thoroughly recommend Gillian Hunter and all the staff whose expertise, efficiency and understanding made the whole process very easy to manage.

Our thanks to all.

T and S Shumack (Wills & Estates)

13 April 2018

‘Stranded’ in a nursing home at the time of my wife’s death, I needed assistance with regard to tidying up her affairs and obtaining probate on her will.

I was more than satisfied with the help provided by SHG in these matters which, among other things, included visits to me when face to face dealing was required.

I would not hesitate to use this firm again should the need arise.

G Cleverly (Wills & Estates 1)

30 May 2017

Gillian Hunter assisted us when our brother passed away without a will.

She made a complicated situation a lot easier for us to understand and kept us informed every step of the way.

Brad (Wills & Estates)

19 February 2018

Just a short note to thank you for your advice, Tanya Herbertson, and the work you did to finalise the settlement for the estate. Dealing with a contested estate was not easy but certainly made better by having a dedicated professional taking care of the process.

Thank you again.

P and E H (Wills & Estates)

29 January 2018

Your company and I have had two years of having to deal with the executors of my mother’s estate.

I first saw Tanya Herbertson, then after that, to completion, I was with Gillian Hunter.

May I say I don’t think I would have got through it all if it hadn’t been for Gillian. I know it is her job but she made me feel as if I was her only client and I will be eternally grateful for her help and support through some very nasty times.

May I also say a big thank you to Lee (on the switch). She was always lovely and pleasant to me.

Once again thank you to all who helped me.

Marilyn L (Wills & Estates)

7 December 2017

In dealing with a deceased estate, Gillian Hunter provided me with highly professional support and advice, but more importantly was compassionate, considerate and patient.

Knowing that she was available and receptive to the many issues that arose during the process gave me great comfort.

I would highly recommend your firm as a result of my dealings with Ms Hunter!

Leonie W (Wills & Estates)

6 December 2017

Miss Gillian Hunter of Snedden Hall and Gallop provided a great service to a lady friend of mine with the will of her de facto partner and his estate.

My friend was totally satisfied with all the professional advice she received!

BC (Wills & Estates)

12 February 2018

Gillian Hunter of Snedden Hall & Gallop provided excellent service and advice regarding probate for my late father’s estate.

I would consult with her again or with others at your firm she might recommend should the need arise.

Charles Smith (Wills and estates)

8 January 2018

With the help of Helen Phelps, the redrafting of my will went very swiftly and smoothly to my considerable satisfaction.

DS (Wills and estates)

12 December 2017

Being confined to a nursing home, I was more than happy with the assistance provided by the legal firm Snedden Hall & Gallop, in regard to the closure and transfer of my late wife’s bank account.

This service, in conjunction with previous assistance from this firm to a stranded client, has ensured that I would not go elsewhere should I have a future need.

G Cleverly (Wills & Estates 2)

22 March 2018

Gillian Hunter assisted me recently by reviewing my Will and Enduring Power of Attorney documents.

It was nice to speak with someone as across her subject as Gillian is.

Margo Hodge (Wills & Estates)

17 July 2017

Gillian Hunter and the team at SHG were professional, efficient and understanding when it came to obtaining probate and dealing with my late mother’s estate.

Noelene V (Wills & Estates)

13 March 2018

We are clients of Gillian who has worked with us on the recent revision of our wills.

The result has been that our wills now are much easier to read and understand. We also found Gillian was very patient in answering all our questions and any special requirements we had have been reflected in the wills.

We found the experience to be a very positive one. We are happy to recommend Gillian Hunter and Snedden Hall & Gallop.

R & D Steele (Wills & Estates)

11 October 2017

What does a client want to know about a lawyer?

You want somebody who achieves a successful outcome.

As a client, you want a lawyer like Tanya Herbertson who is responsive to your needs, keeps you well informed, listens to you, provides frank advice and is successful.

I was fortunate to have had Tanya Herbertson recommended to me to provide legal advice on an estate dispute.

Her advice was invaluable in helping me achieve a successful outcome in this matter. I appreciated her excellent judgement and the fact that she was responsive to my needs in keeping me well informed as the matter progressed.

Jenny (Wills & Estates)

1 September 2017

I was referred to Ms Tanya Herbertson of Snedden Hall & Gallop for advice and assistance in dealing with the complexities of the Estate (located in New South Wales) of my late brother. He had made a number of wills in the three years before his death, the last two of which were prepared and signed by him after he had been assessed by mental health professionals as being cognitively impaired. The Executor named in his final Will declined to accept appointment because of the evidence of my brother’s mental impairment at the time he made it, and the matter was referred back to me and my daughter as his closest surviving relatives, and Executors named in an earlier Will.

It was necessary to apply to the Supreme Court in NSW for the granting of Probate and appointment of me and my daughter as Executors, based on the earlier Will made by my brother nominating us as Executors.

Tanya was very pleasant and helpful to deal with, was prompt in responding to correspondence and telephone calls, kept moving the matter forward and informing us of progress, and was clearly experienced and knowledgeable in that area of the law. I valued her highly professional and skilled advice while assisting us with the probate application for my late brother’s Estate, and was very satisfied with the outcome she helped us to get.

KR (Wills & Estates)

30 June 2017

My wife and I were recently referred to SHG by our Canberra based Financial Planner for a significant update to our wills and to establish an enduring Power of Attorney.   Ms Tanya Herbertson, Director of the SHG Gungahlin Office, managed our instructions.

These discussions were relatively complex and sensitive; and we were both highly impressed with Tanya’s professionalism, knowledge, practical advice, and open friendly manner.  We had limited time available as we were only on a short break from my work overseas; and found Tanya went out of her way to accommodate us at short notice and to complete the whole process within a few short days to our entire satisfaction. An excellent effort!!

When we return to Canberra later this year, we will continue to retain Tanya, and SHG more broadly, for all our future legal affairs.

C Wall (Wills and Estates)

9 May 2017

Thank you, Tanya & team, for your support through this difficult year. Your personal understanding was as important to me as your legal expertise. I’m grateful for all you’ve done to help uphold my father’s final wishes. I can now dedicate my time and energy to my young family.

Anon (Wills & Estates 1)

9 January 2017

I would like to thank you, Tanya, for successfully working through probate for our late father.  Even though I was in Sydney you provided a process that was seamless, timely and stress-free, and I really thank you for that.

Your assistance in closing the affairs of both my mother and father in a professional and friendly manner have been greatly appreciated.

Ms C (Wills & Estates)

12 June 2015

Now that Tanya’s work relating to the Estate of my late wife has been concluded, I wanted to express my satisfaction and thanks. On the one hand, you have consistently been professional and painstaking, and on the other you have been most helpful, patient and professionally pleasant to me throughout. All of this made the process as efficient and understandable to me as possible. I am grateful and will of course be asking you to undertake any further legal matters that there may be on my behalf.

G.H Taylor (Wills & Estates)

19 November 2015

Many thanks Tanya, for your guidance and assistance in working through a deceased estate.

I must say, as a first time participant in this process, it was a lot more complicated than I thought, but you and your staff made it a lot easier to navigate.

Tom D (Wills & Estates)

12 November 2015

I employed Tanya Herbertson and her team at Snedden Hall & Gallop to finalise my late mother’s estate.

Tanya was responsible for providing me with sound advice; managing my late mother’s financial estate while probate was being applied for; and drafting and filing the application for probate affidavits with the Supreme Court to officially recognise my late mother’s draft unsigned will, with her handwritten amendments, as her last will and testament.

Due to Tanya and her team’s efforts, the Supreme Court was satisfied that there was sufficient evidence that my late mother’s draft unsigned will represented her last wishes even though she was not able to sign it and have her signature witnessed prior to her passing away. During the entire process, Tanya and her team always acted professionally and compassionately. I highly recommend Snedden Hall & Gallop to anyone requiring assistance in wills and estate matters.

Anon (Wills & Estates 2)

5 October 2015

Gillian Hunter helped me to prepare writing my Will. I found her assistance and advice very helpful. She was patient and l felt confident that she was genuinely wishing to give me the best advice. She is an efficient and competent solicitor.

Jane Reynolds (Wills & Estates)

28 June 2018

Tanya Herbertson and Helen Phelps know their law and the legal processes. They are on-time, courteous, thoughtful, sensible and smart, very good at explaining what is going on and what could be done, and what to expect. Very nice to deal with. A credit to their profession!

I’d have no hesitation in recommending your firm to other people.

Bronwen Levy (Wills & Estates)

10 July 2018

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