Wills, Estates and Succession Law

A will is the legal document 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.
At Laurier Lawyers we 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

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.

When a testator (will maker) 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 accept instructions to act as agents on behalf of interstate or overseas legal firms in respect of reseals.

Sometimes an executor appointed by a will may predecease the testator or may simply choose not to take on the job of administering the estate. 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.

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 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 Laurier Lawyers have the expertise to assist and the integrity to do so in a sensitive and cost-effective manner.

Not all wills are made equal.

There are very strict and specific rules relating to the formation of a valid will. If any of the 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.

Under Victorian 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, Laurier 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 particularly in Queensland.

The Wills Act 1997 enables the Court to authorise the making of a will, or the revocation of a will, for a person who lacks testamentary capacity. The application may be made by any person, however, leave of the Court is required in order to make the application. If the Court authorises the making of a will then the original will is signed by the Registrar and sealed with the Court seal. The original is retained by the Registrar for safekeeping.
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 be 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 Laurier Lawyers for the right advice on statutory will applications. We will guide you to a successful outcome.

A power of attorney is an authorisation from one person (principal) to another (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. Under an Enduring Power of Attorney, the principal can choose the person or persons who will make decisions on their behalf about financial and personal matters if they cannot make the decisions themselves.
If you do not make an enduring power of attorney and you lose capacity to manage your own affairs the Victorian Civil and Administration Tribunal (VCAT) can appoint an administrator to manage your financial affairs or a guardian to make decisions about your personal affairs such as your care and where you live.

This may leave your perfectly capable spouse or partner negotiating with the appointed administrator, 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 and care arrangements.
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 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

On 1 May 2017 the Powers of Attorney Amendment Act 2016 (Vic) (‘the Amending Act’) came into force to amend the Powers of Attorney Act 2014 (Vic)(‘the POA Act’).
The amendments to the POA Act provide flexibility in appointing primary and alternate attorneys under enduring and supportive powers of attorney; streamline revocation of appointments of enduring powers of attorney and enduring powers of guardianship; clarify the matters for which power can be conferred under an enduring power of attorney; expand the circumstances in which a rehearing can occur at VCAT; and make a minor amendment to the Privacy and Data Protection Act 2014 (Vic).

A principal can also appoint a “supportive attorney”. A supportive attorney’s role is not to make the decision for the principal but rather to assist the principal in making decisions. Once the principal has lost the capacity for decision making the supportive attorney loses the power to act. A supportive attorney has the authority to:

• access, collect and obtain information to help the principal decide;
• communicate to others information on behalf of the principal which is relevant or necessary to making or implementing a decision; and
  do anything reasonably necessary to implement a decision of the principal.

The supportive attorney might be a different person to an attorney appointed by the principal under an enduring power of attorney.

This document allows an adult with decision making capacity to document their preferences for future medical treatment and care, should they lose decision-making capacity. A person can record general statements about their values and preferences to guide future medical treatment decisions, or record instructions consenting to or refusing specific types of treatment or care.

In Victoria a child under the age of 18 years with decision making capacity may make an Advanced Care Directive. Victoria is the only State or Territory to allow this. However, to be valid the document must comply with and meet certain formal requirements. It is essential to obtain legal advice from Laurier Lawyers expert personal succession lawyers before attempting to complete such a Directive.

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.

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 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.

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.
Laurier Lawyers have the expertise to draft simple to complex cascading death benefit nominations.

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