Wills
A Will is the most important document which many people sign. It gives away a lifetime of assets and financially provides for beneficiaries. A poorly designed Will has enormous potential to create permanent disharmony in your family, and involve your descendents in costly litigation.
Few people would be aware that the family home cannot be transferred by your Will until you make some title changes while you are still alive. It is estimated that in over ninety percent of cases, Wills have no effect upon what happens to your interest in the family home. This can be true of other joint assets.
Other issues to be aware of before writing a Will are:
- Superannuation benefits;
- Special needs of children or dependants;
- Life interests;
- Rights of residency;
- Testamentary trusts (and other tax effective provisions.);
- Strategies to minimise challenges to the Will;
- Pre-emptive clauses which may require your Estate to sell your interest in a company or partnership;
- The funding of that pre emptive right;
- Succession planning generally; and
- Disentitling conduct
Experienced advice before drafting a Will can save time and money and achieve the outcome that you require. It also minimises the chance of a successful challenge against your Will.
Estates
We assist families and executors in the prompt finalisation of estates. We are able to give clear advice and a timetable for each of the steps to be taken and of distribution to the beneficiaries.
Contesting Wills
We are able to assist clients in relation to reviewing their Wills to minimise the chance of a successful challenge. We also review Wills and advise as to their ambiguity or invalidity.
We advise clients in relation to medical evidence available, referring to the capacity of the deceased when they make their Will.
Family Provisions Act Claims
The dependents of the deceased may have a claim under the Family Provisions Act for a share of an estate where they have not been properly provided for in a Will.
We have acted for some clients in defending Wills against Family Provision Act claims and we have acted for clients when they were making claims under the Family Provision Act where they were not provided for in Wills.
A number of these claims can be settled and a good outcome achieved once the parties have an opportunity to set out their financial position and their needs and the matter is discussed before a Mediator of the Supreme Court.
Powers of Attorney
A Power of Attorney is a document you can sign to appoint another person (called your attorney) to act for you in relation to financial affairs.
The Power of Attorney continues while you desire it and it can be cancelled at any time while you have the capacity to do so.
A Power of Attorney ceases to operate if you lose the ability to make decisions or when you die.
Enduring Powers of Attorney
An enduring Power of Attorney gives power to your attorney to continue to act for you, even if you lost the capacity to make your own decisions.
Making an enduring Power of Attorney is a way for you to legally appoint a person of your choosing to manage your financial affairs if you have lost the capacity to make these decisions for yourself.
Guardianship
An enduring guardian is someone you appoint at a time when you have capacity to make personal, health or lifestyle decisions on your behalf, should you lose the capacity to make them for yourself.
The appointment of an enduring guardian takes effect only if you lose the capacity to make your own decisions. Further information is available from the Department of Aging, Disability and Home Care www.dadhc.nsw.gov.au.
Family Provision Orders
The dependents of a deceased person may have a claim under the Succession Act 2006 Act for a share of an estate in the event that they have not been properly provided for in a will.
We have acted for clients in both capacities, when defending against family provision claims or in the making of claims under the act.
Often as not a good outcome can be achieved once the parties have an opportunity to discuss their financial position and their needs before a mediator of the Supreme Court. Colquhoun’s can assist its clients to prepare for these mediations.
Intestacy
New intestacy laws which come into effect next year will introduce the concept of multiple spouses allowing them to access a portion of an inheritance in the absence of a valid will. New legislation will have a significant impact on the entitlements of spouses, children and other parties in the absence of there being a valid will.