Wills And Estates

A Will is a legal document that you can make to provide directions about your assets and personal affairs following your death.  A Will is commonly used to:

1. Appoint an executor to take care of your affairs;
2. Determine the distribution of your assets;
3. Appoint guardians for your children; and
4. Provide burial or cremation directions.

If you pass away without making a Will you are said to have died “intestate”. In the event you passing away intestate, there are rules set out in the Succession Act (Qld) 1981 that determines how your estate is to be divided up and who is to be in control of that division. This can impose additional stresses and costs on your family at an already emotionally taxing time.

It is important that if you want your assets divided up in a manner other than as determined by the government then it is important to make a Will.

Any person over the age of eighteen (18) years who has the requisite “testamentary” capacity can make a Will.  This means that you must:

1. Understand the nature of a Will;
2. Know the full extent of your assets;
3. Understand who may have a claim on your estate; and
4. Not suffer from any capacity issues that affects your mind or ability to make a rational decision.

In limited circumstances where a person is under the age of eighteen (18) years and is either married or is contemplating marriage is it legal to make a Will.

Marriage has the effect of revoking your Will in its entirety. It would be as if you had never made a Will at all. This is to ensure that your new wife or husband is not excluded simply because you overlooked updating your Will following your marriage.

Divorce does not have quite the same effect on your Will. In the event that you do divorce your wife or husband, any gifts of your estate to your ex-spouse or appointments of your ex-spouse as an executor, trustee or guardian under your Will are deemed to be invalid.

You should review your Will at least every 3 years or when one or more of the following occur:

1. The financial circumstances of yourself or any person mentioned in your Will changes;
2. Your relationship status changes;
3. You have or are planning to have children;
4. Somebody mentioned in your Will passes away;
5. You dispose of a gift mentioned in your Will;
6. You become involved in trusts or companies.

The short answer is yes. However before a de facto “Spouse” can take any benefit from your estate, you will need to have been in a de facto relationship for a continuous period of two (2) years ending at the time of your death. This does not always apply to superannuation though and it will be important to seek professional advice in this regard.

If a spouse, child or dependant feels that they have been inadequately provided for in your Will, they may bring an application for further provision from your estate.  This can include:

1. Former spouses;
2. Adopted or step-children;
3. A parent of your children;
4. Your parents, grandchildren or any other person wholly or substantially maintained by you prior to your death.

This can often result in further costs to your estate to defend these claims.  It is important to ensure that your Will is fair and reasonable and you have considered all possible claimants when making your Will.

As set out above there are circumstances where you can challenge or contest a Will. You must fall into the category of an “eligible person” and must be able to show reasonable grounds as to why you should be successful.

It is important to note that there are strict time limits to bringing such a claim and you should seek our advice as early as possible to ensure that your ability to contest a Will is not affected by the passing of time.

An Enduring Power of Attorney (“EPOA”) is a document that allows you to appoint another person to make decisions on your behalf in the event that you are unable to do so on your own behalf. For financial matters you can actually appoint attorneys to make decisions for you immediately.

An EPOA is just as important as a Will in your estate plan. Once you have lost capacity to make your own decisions, you have lost the ability to make an EPOA. At this time it would be in the hands of the courts as to who can make decisions on your behalf.

Purcell Taylor lawyers have many years of experience in assisting Executors in administering Estates and Trusts. We can assist with estates ranging from small simple Estates to large complex Estates. We also have in place a proven network of financial and taxation advisors to help us assist you through the Estate administration process.

Purcell Taylor Lawyers have a diverse team of lawyers to meet all of your questions and needs regarding Wills, EPOA’s, Estate litigation and Estate Administration.