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Wills & Estates

Drafting Your Will

A will is the legal instrument which directs the distribution of your assets upon death. Having a will ensures that the owner of property has control over its distribution when they die. In the absence of a will, a person is said to have died intestate, and the distribution of their assets is governed by a statutory formula.

Our lawyers have the expertise to draft simple to extremely complex wills. Some issues which will necessarily make your will more complex or difficult are:

  • blended families
  • a business
  • self-managed super funds
  • the existence of trusts and companies
  • not making adequate provision for a spouse or a child
  • life interests or rights of occupancy in homes
  • clarification as to testamentary capacity
  • proposals for gifts of land to be subdivided

Testamentary Will Trusts

A trust is a legal relationship between a settlor (the donor of property), a trustee (the legal owner of the property) and a beneficiary (the recipient of the benefit of the property). It is often used as a tool to protect the capital of a gift, or to protect the interests of a child, or a person who is in some other way vulnerable. A trust may be created either during the life of the settlor, or in a will. If created through a will, it is a testamentary trust.

Grant Of Probate

When a testator dies, the executor of the will must gather in the property of the testator, pay the debts of the estate, and distribute the assets according to the will. Before the executor can do any of these things, he or she must be authorised to deal with the assets of the estate through a Grant of Probate. This is an Order by the Supreme Court verifying the will, and formally appointing the executor to act.

Our lawyers make frequent and regular applications for Grants of Probate and also accept instructions to act as agents on behalf of interstate or overseas legal firms in respect of reseals.

Grant Of Letters Of Administration

Sometimes an executor appointed by a will may predecease the testator, or may simply choose not to take on the job. It remains necessary for someone to be authorised to take on the task. State legislation prescribes a hierarchy of people entitled to apply to administer the estate, determined by their standing in the will, or by their relationship to the deceased, if there is no will. When they are appointed by the Court to administer the estate, they are said to have been granted Letters of Administration. It is effectively the same power as is given to an executor under a grant of probate.

Administration Of Estates

Once an executor has been appointed by the Court, or granted Letters of Administration, the task of administering the estate begins. The executor must identify all of the assets and liabilities of the estate, transfer legal ownership of any specific gifts, such as cars or real estate, and then distribute the balance to the residual beneficiaries. Very often this will involve selling the assets of the estate, such as real estate, shares, or any other property which is not the subject of a specific gift.

If you require assistance with the administration of an estate our lawyers have the expertise to assist and the integrity to do so in a sensitive and cost effective manner.

Contesting A Will

Not all wills are made equal.

There are very strict and specific rules relating to the formation of a valid will: it must be in writing, signed and witnessed by two witnesses, who are not beneficiaries of the estate. If any of these criteria can be said to be missing, or the testator lacked the necessary mental capacity to make a will, then the will could be said to be invalid. Equally, if the testator is subject to any undue or unreasonable pressure, the will could be invalidated.

It must be remembered, though, that the onus rests upon the person seeking to contest a seemingly valid will to prove its invalidity.

Family Provision Applications

Under Queensland law, testators are implicitly obliged to make proper provision for any person who would reasonably expect to be provided for in their estate. This means that if someone was partially or entirely dependent upon a testator during that testator’s lifetime, then they would need to be provided for in the will and adequate provision made. If they are not, the Court has the power to order a portion of the estate be set aside for the reasonable maintenance of the person.
Strict time limits apply to the making of such applications. It is essential that legal advice be obtained in a timely manner to ensure that your rights are protected. However, our lawyers have successfully brought out of time applications in circumstances where there has been a reasonable explanation for the delay.

Our lawyers also have experience in running interstate applications.

Statutory Will Applications

A statutory will is one that is made by the Supreme Court on behalf of a person who lacks capacity to make or alter their own will.
Statutory wills are also referred to as ‘court-authorised wills’ or ‘court-made wills’. They only became possible in Queensland with the 2006 amendments to the Succession Act 1981.

Before the court will make a new will on behalf of an incapacitated person the court must be satisfied that:

  • the person lacks capacity
  • the person is alive at the time the new will is made
  • the proposed will is or may be a will the person would make if they had testamentary capacity.

The following are some examples of where a court may agree to make a statutory will:

  • a person has dementia, and their existing will needs to be updated to accommodate a change in circumstances
  • a person’s existing will includes a gift of their house to a beneficiary, but the person has since moved into a nursing home and the house has been sold. The gift of the house may fail to take effect, and the named beneficiary may not receive any compensation for the loss of the gift
  • the will has a technical defect which will prevent the intended gift reaching the beneficiary

Statutory will applications are commonly made by family members. However, an application could be made by a wide range of persons including:

  • someone who has a close connection with the person, such as a friend or carer
  • the will maker’s attorney under an enduring power of attorney, or their administrator or guardian
  • the person’s lawyer, accountant or financial adviser.

If the statutory will application is successful, the court will usually order that the legal costs of the application are paid out of the person’s estate, although this is not always the case.

If you believe that such an application should be made on behalf of a family member call Mumfords for the right advice on statutory will applications.

General And Enduring Powers Of Attorney

A power of attorney is an authorisation from a principal to an attorney to do any of the legal acts which the principal is entitled to do. This would include such things as banking, dealing with business affairs, and even attending to real estate transactions. The attorney can only act on the specific instructions of the principal. It is a very useful practice to prepare a power of attorney for anyone who is travelling abroad. A general power of attorney expires if the principal becomes incapacitated, but an enduring power of attorney will continue, and it is therefore very useful for people who are aging, or suffering from degenerative conditions.

If you do not make an enduring power of attorney and you lose capacity to manage your own affairs the Queensland Civil and Administration Tribunal (QCAT) can appoint an administrator to manage your financial affairs.

This may leave your perfectly capable spouse or partner negotiating with the administrator, such as the Public Trustee, when your funds are required to meet the costs of your care. This is usually a frustrating, costly and time consuming process for your family members and your estate.

By making an enduring power of attorney you can ensure that your nominated partner or spouse, close family member or friend can manage your financial affairs without the interference of an administrator. Clearly it is far preferable to have someone you nominate and trust undertaking these financial tasks on your behalf and making decisions for you on daily matters including health.

As we can now live our lives in a state of dependency for a very long time, our lawyers encourage you to carefully consider and reflect on how you expect your affairs to be managed by your attorneys if you no longer have the capacity to do so. Quite detailed terms can be drafted and our lawyers will spend time discussing various different clauses which might be included in your enduring power of attorney. Some issues which take special consideration are:

  • the family home or other significant assets being registered solely in one spouse’s name
  • capacity to make an enduring power of attorney
  • how is the loss of capacity to be determined
  • expectations in the event of assisted living requirements
  • ongoing financial provision for dependents

Advanced Health Directives

These allow a person to nominate someone – usually a close relative – to be responsible for decisions relating to their health care and end of life decisions, when the principal is no longer able to make their own decisions. This includes decisions on such things as the type of care to be given, and may include decisions on such things as life support and resuscitation. An advanced health directive can give very specific instructions as to future care, or may leave a great deal of discretion to the nominee.

Company/Directors Powers Of Attorney

Companies act through their directors. When a director is unavailable or incapacitated, the company itself becomes incapacitated. This is particularly so when there is only a single director of a company. A company power of attorney allows the company to nominate a person who will be able to do any necessary legal acts if the director or directors are unavailable or incapacitated. It is a very effective means of ensuring continuity of the company’s operations.

Even if provisions are made for succession of control via a will, there can always be the risk of delay in obtaining a grant of
probate and the operations of the company in the meantime may suffer as a result without an attorney director.

Asset Protection And Estate Planning

The death of a business owner or property owner may have the effect of breaking up the business, or causing the property to be sold or subdivided. This can have very negative effects on the value of a business. Although there are no longer death duties in Australia, there may be capital gains issues arising from transfer of property upon death. For all of these reasons, there is often a great advantage to making plans in advance and putting in place legal arrangements such as trusts and companies to ensure continuity of business.

Binding Death Benefit Nominations

These are a direction, from the beneficiary of a superannuation fund to the trustee of the fund, to pay the beneficiary’s entitlement to a specific person or people on the death of the beneficiary. Entitlement under a superannuation fund is usually not an entitlement which may be disposed of by will, so it is good practice to ensure that there is in place a binding death benefit nomination, so that the distribution of the superannuation entitlement is the decision of the beneficiary and not at the discretion of the trustee, which would otherwise be the case.

Getting it wrong can have disastrous consequences. Your wishes may not be fulfilled.

Our lawyers have the expertise to draft simple to very complex cascading death benefit nominations.

With the right advice the futures of your dependents are made more certain.

Guardianship Tribunal

The Queensland Civil and Administrative Tribunal now has the power to appoint the Office of the Public Guardian, or some other person to protect the interests of any adult who is no longer able to care for themselves, because of impaired mental capacity. This will then allow the appointed guardian to make decisions about such things as financial management, medical care, and residence. An appointment by the Tribunal is usually advisable where there is doubt about the capacity of an adult, in order to protect the decision-maker from any later liability.

If an application to QCAT is required, our lawyers are able to act on your behalf in an advisory or representative role.

Advisors

  • helena

    Helena

I have said to Helena Mumford I would be back in a instant that anything else would arise with me and my family, and I will recommend Mumford Lawyers to family and friends. A very big thankyou again to all at Mumfords Lawyers From Anthony Mazzone and Family.

Anthony Mazzone

I am extremely pleased with the outcome they were able to obtain for me and highly recommend their services

Tony Brown

I would like to thank Lucy Wood for her support, understanding and professionalism during a very difficult and stressful time for me

Ciarán Hallinan