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Wills and Powers of Attorney

It is very important to have a Will and a Power of Attorney for many reasons. Every adult in Australia should have a Will and a Power of Attorney and if they don’t they should get one now!

A Will is a legal document which sets out:

  1. Who is to get what from your property.
  2. Who is to be the person responsible for dealing with your property after you pass away.
  3. Who is to look after your children and pets after you pass away.
  4. What is to happen to your business.

A Power of Attorney is another legal document by which you appoint a person to make decisions and sign documents on your behalf in the event you are unable to do so yourself (for reasons such as mental incapacity or serious injury).

A failure to have a Will or a Power of Attorney in place can lead to unintended and disastrous consequences – for example if you do not have a Will, your assets may be given to someone you did not wish to get them following your death. If you don’t have a Power of Attorney in place and you lose mental capacity, your family members will have no option but to apply to the Government for permission to manage your affairs. This is often a time consuming and stressful process.

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The importance of Wills

A recent study has shown that almost 50% of Australians do not have a Will or Power of Attorney, and of those that did have those documents, the majority were not satisfied that the documents reflected their true wishes anymore (e.g. as their circumstances had changed, due to remarriage, children etc.).

If you do not have a Will you do not have any say in how your property is distributed in the event you pass away. Here are 5 reasons you need a Will now!

  1. You can choose who is to carry out your wishes and give effect to your decisions set out in your Will .
  2. You can clearly set out who is to care for your children upon your death and make sure it is the person chosen by you;
  3. You can control when gifts are given to people (for example, you might want to give property to your children however not until the reach a certain age);
  4. You can make it clear what is to happen to your business;
  5. You can give specific gifts to specific people, and a properly drafted Will can minimise the risks of someone you do not want to inherit any of your property from making a claim for some of your property after you have passed away; and
  6. You can provide for what is to happen to your pets.

The importance of Powers of Attorney

Most Australians do not currently have a Power of Attorney in place. A Power of Attorney is a legal document by which you appoint someone to make decisions on your behalf if certain circumstances arise, for example if:

  1. You lose mental capacity; or
  2. You are unable to sign documents yourself (say if you’re seriously injured or are overseas).

In the event you lose mental capacity without a Power of Attorney in place essentially no-one has the authority to manage your financial affairs and your family members would need to apply to the Government to have someone appointed as attorney. This is often a slow, complex and costly process.

If there comes a time when you are unable to manage your own affairs, it may be too late to make your wishes clear to those who will care for you.

A Power of Attorney is also useful when you go travelling, particularly if you have a business. If you go overseas without a Power of Attorney in place, no-one will be able to operate your bank accounts or sign any documents on your behalf should you wish for them to or in the case of an emergency.

The dangers of do-it-yourself Wills

People often ask why they should get a lawyer to do their Will when they can do it more cost effectively themselves using a cheaper DIY Will kit. Many people do not understand the risks and dangers of doing their own Wills and what can go wrong if they don’t get it right.

The following are five examples of things that often go wrong when people use a DIY Will kit:

  1. The Will does not meet the strict requirements to be a valid Will.
  2. The Will does not actually do what the Will-makers intended it to do with their property and children.
  3. They misunderstand how they legally own their assets and make mistakes in the Will (e.g. by thinking that they are able to gift certain assets such as superannuation to specific people, when they in fact have no legal right to do so).
  4. They misunderstand how their Will can be best set out to avoid the risk of someone who they have intentionally left out of their Will from making a claim for some of their assets.
  5. They misunderstand what the difference between an Executor and a Guardian is, and as a result they not make proper provision in the Will for who is to care for their children when they pass away.

A Power of Attorney is another legal document by which you appoint a person to make decisions and sign documents on your behalf in the event you are unable to do so yourself (for reasons such as mental incapacity or serious injury).

A failure to have a Will or a Power of Attorney in place can lead to unintended and disastrous consequences – for example if you do not have a Will, your assets may be given to someone you did not wish to get them following your death. If you don’t have a Power of Attorney in place and you lose mental capacity, your family members will have no option but to apply to the Government for permission to manage your affairs. This is often a time consuming and stressful process.

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When you should update your will

You should review your will every 3 years to ensure it still reflects your wishes. As your life changes, your Will needs to change to reflect your new circumstances. A failure to update your Will when you need to can result in your Will being revoked or otherwise being unworkable, in which case your Estate may not be distributed as you wish it to be on your death.

In addition, your Will should also be reviewed and updated in the event:

  1. You buy or sell land;
  2. You move house;
  3. You get married;
  4. You get divorced or separate from your partner;
  5. You enter into a defacto relationship;
  6. You have children or grandchildren;
  7. Your executor or beneficiary dies;
  8. You now have step-children;
  9. Your children got married or had children;
  10. You no longer have contact with the person you appointed as Executor (being the person who administers your Will), or your Executor dies or becomes unable to act; or
  11. You no longer wish to include the person in your Will.

Did you know that if you get married, normally your Will is automatically cancelled? Divorce does not revoke your Will, but it cancels any gifts in favour of your former spouse.

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What conditions can you include in your Will? Religion? Age? Marriage?

People often wish to make gifts in their Will subject to conditions, such as the person receiving the gift:

  1. attaining a certain age;
  2. converting to a particular religion; or
  3. marrying someone (or a particular person).

So when is it ok to include these conditions? The answer depends firstly on the type of condition imposed, and secondly on the way the pre-condition is drafted. It is important to know when a particular condition can be included, as the inclusion of invalid conditions can result in a court ordering that a condition be waived and a gift be given to a beneficiary without fulfillment of that condition.

Age
Generally it is acceptable to include a condition in a Will that a gift be subject to a beneficiary attaining a certain age, such as 21.

Religion
A recent court decision considered this issue, in which a gift was subject to a beneficiary converting to Catholicism and being baptized. The court found that as the condition was expressed clearly, not impossible to satisfy and was not against public policy, the condition was valid and the beneficiary had to meet the condition before they could get their gift.

Marriage
Previously conditions requiring a person to marry another before they were entitled to their gift under a Will were void for public policy reasons. Should you wish to include such a condition, we recommend you seek legal advice as to how such a condition could be included.

What not to include in your Will: Gifts that will fail

Gifts to people included in your Will can “fail” in several circumstances, which means that the gift may not go to the person that you wish for it to go to.

The following are things that you should not include in your Will, and a practical suggestion as to what you could do or include instead:

  1. Leaving property that you hold as a joint tenant with someone else to a person who is not the other joint tenant. This is invalid because by law your interest in a property that you hold as a joint tenant will automatically pass to the other joint tenant upon your death. To overcome this you could “sever” the joint tenancy and change each person’s interest in the property to being held as tenants in common. When you hold your interest in a property as a tenant in common, you can gift your interest in the property to who whoever your wish – it will not automatically pass to the other person who owns the property with you;
  2. If property described in a Will is incorrectly described, or alternatively you no longer hold the property, then the gift will fail. You should regularly review and update your Will to ensure that this does not occur;
  3. Leaving a gift to a person who witnesses your Will. This commonly occurs when Will kits are used and a person does not see a solicitor when making a Will. It is important to ensure your Will is drafted and signed in accordance with the law; and
  4. Leaving a gift to a pet. Unfortunately pets do not have legal capacity to hold a gift, and therefore you should leave the gift to a person who you know will take care of your pet.

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