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 what you need to know when you are ready to move into a retirement village.
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:
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.
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.
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.
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 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 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.
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
- 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.
- 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.
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