Wills – what are they and why you should have one
A “WILL” is a legal document stating your wishes regarding the division of your estate, that is, your money and assets, after you pass. You also appoint someone to administer your estate, known as an Executor, usually a family member, close friend or legal advisor.
If you die without a Will, this is called dying intestate and your estate will be dealt with according to the intestacy rules set out under the Succession Act 1981 (Qld). These rules provide for the distribution of an estate to the deceased’s relatives.
Whilst there is no law against preparing your own Will, this is not recommended as there is a risk of the Will being invalid if it does not comply with the applicable legal formalities. These uncertainties can ultimately lead to costly legal proceedings to resolve the issue, which reduces the value of the estate.
It is recommended that you engage an experienced legal professional to assist you in preparing your Will. It may be necessary to amend your Will at various times throughout your life, depending on the nature and extent of changes in your circumstances. For example, significant life events such as marriage, divorce, children, significant change in assets and death, generally give rise to a need to amend the terms of your Will.
Given the importance of a Will, it must be kept in a safe place and the Executor should be told of its whereabouts.
Until next week – Keep it Legal!
Katie Caldow
kcaldow@walkerpender.com.au
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
Do I Really Need a Will and EPOA?
How often have you said that to yourself?
I have often heard friends, family and clients say this to me – I have been discussing a Will and EPOA for a while now.
So why is it so important?
A couple of years ago I was working in a law office, seeing clients about their Wills. One Monday morning a woman came into the office early. She didn’t have an appointment and was clearly distressed. Her ex-husband had been rushed to hospital on the weekend after he had collapsed. Even though she had been separated from him for many years, friends contacted her. They had two children together and while the divorce had been unsavoury the friendship after divorce had remained.
Even though she lived in her own home, she still visited the substantial family home often. Her ex had been very successful in his career and had never spared the best in the home, the cars and boats and other toys. He had a substantial amount of superannuation and had been preparing himself for many years of international travel.
But here we were….a very well dressed woman, in tears, frenetically distressed and constantly on the phone talking to her sons and other relatives. They did not know what to do to fix the situation. No one had expected this. And like so many times…. that nearly everyone can relate to – there is a void, an unknown as to what the future holds……and it is very unsettling.
Her ex-husband had been diagnosed with a tumour in the brain. The doctors had already operated to stop the bleeding which had caused the collapse, but he needed another surgery to remove the mass in his brain. Regardless as to how the surgery progressed he would need to be placed into a facility for extensive rehabilitation or at worst a hospice to die. The doctors had asked the family if they had an enduring power of attorney, a requirement of both the hospital and the rehabilitation facility. No he did not have an EPOA. And of course the subsequent question came; does your ex-husband have a Will? No. Heart sinks, panic sets in.
Our office was able to help this client by travelling to the hospital and taking instructions for both a Will and an Enduring Power of Attorney….but it was highly stressful for the family. There was uncertainty as to how to care for him if they (his family) were not allowed to be involved in either his financial and health decisions. The doctor had mentioned he could lose his capacity within days if the surgery went badly meaning he would have to rely on others, not family to make decisions for him using assets which he would have wanted to pass to his sons.
Why make a Will and EPOA?
- Your assets are passed to those individuals you chose
- You have control
- You can nominate an executor and guardian you want
When to make a Will and EPOA?
- When you turn 18, marry, separate, divorce
- Upon buying your first property
- When you have your first child
- And other important life decisions
and remember, young people die too, sometimes with superannuation and death benefits!
Check both annually and if necessary replace your Will every two years.
To organise your Will and EPOA or to make changes to your current Will and EPOA, contact our office and make an appointment with Gerard or one of our other experienced Solicitors.
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
A Will Can Now Be A Text Message
In a recent well publicised Court decision, the Court in Queensland determined that a Will made by text message was valid and enforceable. This was after a costly and contested Court battle.
Historically, Wills were made with great formality, had to be properly witnessed and the requirements for completion of the Will, including the signing and witnessing of it were strictly enforced.
The Law is now much more flexible and a Court will often accept a Will which is not properly signed or witnessed or completed or a Will made by a text, or email or some other method. On the face of it, this would appear to make it easier to make a Will and may be an encouragement to people to make Wills in a less formal way.
Each person has the right to make a Will as they see fit and in the manner they see fit using a Solicitor or not. However, these more informal Wills will often create complexity and additional costs in the administration of an estate and there may be less certainty about the final distribution of a Will to beneficiaries. Such Wills are more likely to be contested. The administration of the estate may take much longer and may be significantly more expensive in legal and other costs.
Homemade Wills and Post Office Kit Wills are now becoming more popular. Often these are not made correctly, not properly signed or executed and their meaning is uncertain. This again, leads to further delays, uncertainty and potentially significantly more legal costs.
There is no substitute for a properly made Will by a Lawyer.
Contact one of our experienced Lawyers at Walker Pender Group Pty Ltd, to assist you to make a proper and accurate Will.
*The legal information in this article is of a general nature only and not intended to be legal advice to rely upon.
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