Wills & Estates

The qualification to testamentary freedom is set out in legislation. In New South Wales this qualification is set out in the Family Provisions Division of the Succession Act 2006.

The Act provides that certain individuals can contest a Will, those persons being defined in the Act as ‘Eligible Persons’ (see our article ‘Who are Eligible Persons’).

Some categories of Eligible Persons have more hurdles than others to overcome before a contest to the Will is successful, but for all categories the Eligible Person must establish that the provision made for them in the Will was inadequate, and if so, satisfy the Court that an order for the persons maintenance, education or welfare should be made, based on a number of factors.

Prime Lawyers is a leading firm in the field of contested estates and uniquely placed, operating one of the State’s largest Probate divisions meaning that Prime Lawyers is regularly instructed by executors to defend claims brought by Eligible Persons against the estate. 

There are strict time limits for contesting estates and it is important to obtain advice from a firm regularly appearing before the Supreme Court of New South Wales in what is a complicated area of law. 

An enduring guardian is a person appointed by you to make decisions on your behalf in relation to your lifestyle in the event that you become incapable to manage these decisions for yourself.

Examples of matters upon which an enduring guardian can make decisions on your behalf:   

– As to where you live;

– Medical treatment you receive;and

– Other personal services you receive.   

When appointing an enduring guardian you can specify what decisions they can and cannot make on your behalf by empowering them with certain functions. You decide on how many or few functions the guardian has. 

There are certain legal limitations on the guardian which include:

– Your guardian cannot make a will for you;

– Your guardian cannot consent to your marriage; and

– Your guardian cannot manage your finances. A Power of Attorney is required for financial decisions.

The appointment of an enduring guardian to make health decisions for you will often go hand in hand with the appointment of an attorney to manage finances, for instance, a move to assisted or aged care involves health decisions as well as financial decisions, being the cost of paying for those health services.

Prime Lawyers will explain these estate planning documents and ensure the appointment of an attorney is documented correctly to ensure your wishes are given full legal effect. 

A Power of Attorney is a legal document appointing a person to manage your financial affairs and assets.

A Power of Attorney is useful if you are going overseas, are unwell or immobile and you need assistance in managing your financial affairs and assets.

More commonly a Power of Attorney is used as an estate planning too. This is so as there may become a time at which you are incapable of managing your affairs. By executing an Enduring Power of Attorney the appointment endures after the point at which you have lost the capacity to make decisions. The Enduring Power of Attorney can be drafted to commence at any time, but is more commonly drafted to take effect when a medical professional provides a certificate to the effect that you (the principal) are no longer capable of managing your own affairs. 

Powers of Attorney can operate to appoint one or more attorneys acting either jointly, severally, or joint and several.

Appointing an Attorney is a quick and easy way to ensure the people close to you have the legal authority to deal with your assets in the event that you require assistance doing so in your lifetime. It is essential the correct form of Power of Attorney is used to ensure the appointment is legally valid.

Prime Lawyers will advise you on the benefits of making an Enduring Power of Attorney, answer any questions and attend to the drafting and due execution of the approved form with little fuss. We invite you to get in touch to receive our latest fee schedule or to make an appointment at one of our offices to meet with one of our friendly estate lawyers.

Probate is an application before the Supreme Court of New South Wales proving the last will and testament of the deceased.

Once probate of the will has been granted all property of the deceased vests in the name of the executor. This means the executor has the legal authority to call in and take possession of those assets from the individuals and organisations holding onto the deceased’s assets, for example, the bank, share registry, Department of Lands or aged care facility. 

In this respect, the requirement to obtain the grant of probate is determined by the type and size of the estate left by the deceased. Some assets, such as jointly owned property, do not form part of the estate of the deceased, and will therefore not require the grant before the asset can be transferred to the joint owner. If the estate is small in value the requirement to obtain probate may also be waived by the asset holder if appropriate documentation is completed, usually in the form of a small estates indemnity. 

Although the practical considerations noted above often drive the decision to obtain the grant, there are also sound legal reasons to obtain the grant. An executor inter-meddling in the administration of an estate without the grant of probate may be held personally liable for their actions if a later will is proved. Obtaining probate and complying with the notice provisions of the Probate and Administration Act 1898 also provides the executor with legislative protection from claims of creditors against the estate. Without the grant of probate an executor can be held personally liable for the debts of the estate creditors where distributions have been made to the beneficiaries. 

Most people know what they want to happen when they die, and a will drafted by a solicitor is the best way to ensure those wishes are given legal effect. 

It is important to obtain legal advice on a will for a number of reasons, but here are three of the most important:

1. Formal requirements

The Succession Act 2006 sets out the requirements for a valid formal will. If these requirements are not met, for instance the correct execution of the will, then the will can still be admitted to Probate, but it creates complications in the form of delay, uncertainty and cost which are avoided by meeting with a solicitor of Prime Lawyers – we know the rules, its our job.

2. Making sure your wishes count

What you want to happen when you die needs to be written clearly and with an understand of the law of wills and estates. Prime Lawyers will explain to you what assets form part of your estate and which do not, what happens if your beneficiaries do not survive you and what meaning gifts in your will shall be attributed on your death (for instance, whether a gift of “my car” means your car now, or your car owned at death). 

3. Understanding the impact of Family Provision Legislation  (“contesting wills”)

Worried about that long lost cousin contesting your will? In New South Wales only certain people, called ‘eligible persons’, can contest a Will. Understanding who is eligible to contest a will and what needs to be established for such a claim to be successful is an important consideration. Misinformation as to this area of law can also have the opposite effect, for instance, including a beneficiary in a will to avoid the beneficiary from contesting the will at a later date. Prime Lawyers is a leading contested estates firm and will explain the operation of the Family Provision division of the Succession Act 2006.

Wills drafted by Prime Lawyers are not complicated and therefore not expensive. We take no short cuts but unlike some of our competitors understand that key to a valid will is the will maker’s knowledge and approval. We take the time to understand your wishes, document those wishes in a valid formal will and ensure the will meets the requirements of the Succession Act 2006 – its simple, so we do not complicate the process.