Frequent Questions

You should approach this decision in the same way you would approach the decision to make a valid will; its about catering for unpleasant possibilities that you can’t fully contemplate now, but doing so in the interest of your loved ones and yourself.

We all know or know of people who have lost the ability to manage their own affairs and make basic decisions about their lives, whether through mental or physical infirmity, misadventure, and so on.

It will not happen to everyone, of course, but there remains the possibility that it could still happen to you. For example, the increasing incidence of mental infirmity in old age make it increasingly likely that many of us will, at some point in our life, lose the ability to make decisions for ourselves.

Often, when this happens, family members are unsure of how to best care for the infirm and may have very different ideas about how it should be done.

An enduring guardian, appointed by you, will make decisions about how you live, in the event it happens to you.

You can be selective as to what control you want them to have; you may not wish to allocate complete responsibility to one person but several, or may not want anyone to make certain decisions for you. As long as you are of sound mind, you can reverse or modify the appointment of an enduring guardian.

There are several things an enduring guardian cannot perform under any circumstances, such as financial or legal decisions  – these are the responsibility of one’s power of attorney.

Like making a will, appointing an enduring guardian is something you do for the loved ones around you who may one day be faced with this situation.

Unlike writing a will, however, this is also something you can do for yourself. An enduring guardian makes lifestyle decisions and can deal with other very personal matters. By appointing someone now, you can still exercise some control over how you will live later and the decisions that are made for you. If you lose the ability to decide, it is important to have someone – or several people – who you can trust to make the right decisions for you.

A will, often called a ‘last will and testament’, is a document written by an individual (the ‘testator’) stating what will happen to all his or her monies, property and other assets (collectively called ‘the estate’) when he or she dies.  In that will, he or she appoints an ‘Executor’ – usually a family member or friend – to carry out the wishes stated in the will after death.

It is very important that you write a will.  Otherwise,  you will have no say over what happens to your estate when you die. It will be distributed by the law through an ‘Administrator’. This distribution will occur according to a list of persons determined by law – and not to who you think most deserves it. In fact, the list of  recipients – called ‘beneficiaries’ – may be entirely against your wishes, if you leave it to the law to deal with your estate.

It is also the only way you can ensure that the arrangements for your spouse and children that you believe are necessary, will be carried out.

It also provides a strong reassurance, to those that matter, that they were appreciated by the friend or family member that has passed away. The alternative – leaving it to the law to distribute an estate – is a much more anonymous and impersonal process.

A will is a very important but complex document. It has to meet many legal requirements and follow certain forms. It must be able to withstand both legal challenges and the tumultuous period of bereavement experienced by the family and friends left behind.

However, as complicated it may seem, writing a will is the wisest thing anyone can do to avoid unnecessary pain and confusion for loved ones. The legal advice provided by a solicitor can simplify the process enormously.

An Executor is the person appointed in another person’s will to dispose of the monies, property and other assets listed in that will, after the death of its author.

An Executor has to follow both the deceased’s wishes and numerous legal requirements when disposing of that estate.

It is not simply a case of handing out the deceased’s monies and other belongings among the beneficiaries listed in the will.  An Executor will probably also have to search for every financial, property or other asset that the deceased may have owned because these things may not all be listed in the will. Even if they are not listed, they must still be located and disposed of to the advantage of the beneficiaries. Even more likely, he or she must catalogue every miscellaneous items the deceased possessed, no matter how numerous or small.

Achieving all of these things requires patience, attention to detail and awareness of the law.  The law requires the Executor to follow a rigid list of things to do, in order for his or her actions to be regarded as valid and above challenge.  It is often an emotionally charged and highly pressured task and the assistance of a solicitor is often necessary.

These are a few examples of the responsibilities an Executor will face:

• obtaining a Grant of Probate from the Probate Registry of the Supreme Court;
• keeping accounts of every expense incurred in disposing of the estate;
• ensuring that the condition of the deceased’s assets and other property are maximised at all times;
• deciding the best way to dispose of an asset, in the best interests of the beneficiaries;
• placing a Notice of Distribution;
• determining if he or she, as Executor, is entitled to some form of payment;
  and so on.

In addition, an Executor owes a ‘duty of care’ to the beneficiaries of a will; this means he or she will be liable for anything that goes wrong and must always be available to the beneficiaries, whose interests the Executor is required to protect.

The role of Executor can be a full time commitment and requires a high level of responsibility.

The simple answer is that it is never too early or too late to make a will, but the best time is NOW.

Everyone of adult age should have a will. Many people delay the matter until they retire.  Many don’t even do that much because, at any age, who wants to contemplate death?

However, these approaches defy the simple fact that life can be very random and the whole point of having a will is to be prepared – not for yourself, but for friends and loved ones. The decision should not be influenced by how much or how little you have; the quantity or value of your belongings is not the point.

What is also important is that the will is written properly and as up to date as possible.

You should certainly write your will – or, if you already have one, update it – whenever there is a personal or financial development in your life.  Marriage, separation, divorce, or remarriage, employment or redundancy, buying or selling a home or business, the birth or the death of loved ones, changes in your children’s circumstances, changes to estate laws – all these developments necessitate a will and, just as importantly, the periodic revision of that will, to make sure it still accurately reflects your relationships and intentions.

You should always have a plan to deal with those times when you are not able to manage your personal business affairs – be it temporary or in the event of infirmity or tragedy.  For this reason, it is wise to appoint a ‘power of attorney’ who will manage your property and financial matters when you are unable to manage them directly or are incapable of managing them at all.

There are three kinds of power of attorney.  In each case, you must appoint someone – or revoke their appointment – when you are mentally capable of making this decision and the appointment must be accepted by him or her.

A solicitor can help you decide the best approach for you and help you make the right choice for the job. You can even appoint a solicitor to the position when you don’t want to burden family or friends.

General power of attorney
This power is most useful when you are overseas, in hospital or otherwise unavailable to make property and financial decisions.  The power expires the moment you lose mental capacity so it is not susceptible to exploitation in the event  you are unable to revoke the appointment.

Enduring power of attorney
You should appoint someone as your attorney as enduring to cover the situation in the event you are permanently rendered incapable of making property or financial decisions due to physical or mental infirmity, including old age.  You should go to the trouble of making this appointment as it is quite separate from your ‘enduring guardian’; each appointment has completely different sets of responsibilities.

Like making a will or appointing an enduring guardian, this decision is based on a unpleasant future possibility and its one many people never make. However, like those other examples, it is something you should do, both for yourself and for your loved ones.

Alternative power of attorney
It is wise to appoint an alternative power of attorney who will take over the responsibility in the event your primary appointment is rendered incapable of performing the function.

Anyone can write their own will or they can do so with the assistance of a solicitor specialising in wills.

Sometimes, people attempt a ‘homemade’ will without any guide or assistance but such documents often do not follow correct legal form nor withstand legal scrutiny; there are many formalities that a valid will must follow and legal assistance is really the best way to adhere to these.

There are also many ‘do-it-yourself’ will kits that offer a straightforward, low-hassle process with a minimum of fuss.

However, your particular circumstances may require the more detailed attention of a solicitor, in order to form a customised will that best suits your needs and stands up before the law. Remember, if your will is not correct in every respect your wishes may not be followed.

A trained solicitor, helping you each step of the way, will identify all your physical and financial assets and other property and construct a will with an eye on the many tax and legal considerations you will have to consider. He or she may even be able to help you identify the best way to distribute your assets among your loved ones. A solicitor can ensure your will conforms to the law, maximises your assets to the advantage of your beneficiaries and provides a clear statement of your intentions to your friends and family. A solicitor can also be appointed the Executor of your will, if you do not want to burden a friend or family member with that responsibility, or they can help you select the most suitable person for that task.

Paying a solicitor to do the job may seem like a luxury you can not afford but it may actually save you or your estate money by avoiding unnecessary expenses that may be incurred by an ambiguous or poorly structured will.

When someone dies without a will, he or she dies ‘intestate’. In each state, the law has arrangements for this which detail who gets what from the deceased’s estate and how this process is to be administered.  To do this, an executor (sometimes called an administrator) will be appointed to dispose of the estate.

The most obvious problem with this situation is that you have no say whatsoever; you don’t get to choose who gets what, you don’t get to make a unique statement to those you love and care about and you don’t get any say over who administers your estate.

Furthermore, each state has slightly different rules about how your estate should be administered if you die without a will and this is a problem if you have assets in different states.

In each state, however, the law’s formula for distributing your assets has a clear hierarchy starting with the immediate family; surviving spouse and/or children, followed by the nearest living relatives and then, if there are none, the government.  It may leave out friends or other loved ones you care about, and may be completely contrary to what you want.

Dying intestate often leaves families confused and can lead to unnecessary conflict at a very emotional and vulnerable  time for all concerned.  Your loved ones will be left second-guessing each other about your intentions and each may have very different ideas about what they think you wanted and what they feel they each deserve.

The whole process is more time consuming and expensive than if you had left them a valid will.

Even though the law provides a list of beneficiaries, that will not avoid any of these pitfalls. Only you can do that by writing a valid will that clearly states your intentions.

This a common concern when writing a will. In some extreme examples, where the possible beneficiary concerned is a spouse or child, it is very difficult to avoid naming them as a beneficiary because, as a child or spouse, they have an immensely strong claim against your estate even if you choose not to name them.

Fortunately, there are ways to exercise some control over a beneficiary’s enjoyment of the benefit you bequeath to them, enabling you to make this important gesture to them with some peace of mind.

A common solution is to set up a trust arrangement whereby the benefit you bequeath to them is held in trust under clear constraints you have outlined. It may wait until the beneficiary reaches a certain age or meets a certain condition before the benefit is made available to him or her. Alternatively, it may dispense a limited amount of money at certain intervals specified by you.  There are numerous forms these trust arrangements can take. However, there are also certain arrangements that will not stand up before the law if challenged.

To make the right arrangements or to investigate other possible solutions, you should discuss your concerns with a solicitor who can advise you on the best course of action.

You may be able to challenge a will on a number of grounds, provided you are eligible to do so.  You would do this in the Supreme Court and it must occur no later than eighteen months after the deceased passed away.

You must be one of the following persons in order to challenge a will:

• a spouse or de facto spouse – this may include a same-sex spouse
• a former spouse;
• a child;
• a person in a domestic relationship with the deceased – this can be someone who was in a non-marriage, non-de facto personal adult relationship with the deceased, regardless of whether or not they were related, in which they lived and provided domestic support and personal care to each other;
• A dependent grandchild of the deceased;
• any person who was a dependent of the deceased and was a part of his or her household.

A will can be challenged on any of the following grounds:

• that you were not properly and fairly provided for in the will and are entitled to something more than what you got;
• that the deceased did not have the mental capacity to make a valid will;
• that the will itself is an old one and no longer valid;
• that the will was interfered with after it had been signed; or
• that the will was not made with a free mind because the deceased was tricked, pressured, intimidated or otherwise manipulated when making the will.

If you think you may have a good reason to challenge a will, it is essential that you talk to a solicitor, who specialises in wills, as soon as possible.

In some States, the definition of a ‘de facto’ relationship has been changed to include same-sex relationships by removing any reference to the gender of de facto partners.  This change has, in effect, included same sex partners in the definition of ‘de facto’. This important change affected a wide range of laws, including those relating to wills and estates.

Same-sex couples may now be considered de facto spouses provided they meet the standard

requirements for a de facto relationship; namely, that each person was the only partner of the other person and not in another de facto relationship.

The following issues will determine whether or not a same sex relationship qualified as ‘de facto’:

• how long the relationship lasted
• how long the couple cohabited
• was there a sexual relationship
• what level of financial dependence existed between the parties
• was property owned, used and acquired
• was there evidence of a mutual commitment to sharing their lives
• how were household duties performed
• how was the relationship perceived by other outside the relationship

Most other states and territories have followed NSW, which was the first to introduce the changes, and some have made even more sweeping changes.

So a same-sex partner of a deceased person has the same rights as a heterosexual de facto spouse.