Wills & Succession

The purpose of having Powers of Attorney and Medical Treatment Decision Maker documents put in place is to ensure that if you lose capacity through an accident or illness then a surviving spouse or family member or friend do not need to go to VCAT to seek a guardianship or a financial administration order.

These documents are also important to put in place for an adult child with a disability who cannot look after their own financial affairs when they attain the age of 18 years – a child under 18 will be assisted for these maters by their parents as guardians but once they turn 18 then the parents need to have powers of attorney prepared for their adult child (if the child can give instructions for this and have capacity to do so) or they may need to obtain guardianship orders from VCAT for the adult child.

We recommend that everyone should regularly review all existing Powers of Attorney:

• Every two to three years or if your financial circumstances should change;
• If a nominated attorney dies;
• If a nominated Attorney become unfit to act due to failing health or other reasons;
• If you separate from your partner or re-marry; or
• If you have any queries or concerns about your current Powers of Attorney.

Superannuation is often one of the largest and most accessible assets that we own due to the life insurance component built into industry fund policies.

Beneficiary Nominations need to be looked at carefully and a review or execution of binding death nominations is critical to ensure that the funds pas to the intended correct beneficiary.

We can review binding death nominations to ensure that they have been drawn and executed properly for both industry funds and self-managed superannuation funds.

Intestacy places a large responsibility on your surviving family as they will need to rely upon a legislative formula that guides how an Estate will be distributed. This will mean that they have no control over who distributes the estate and whether the Estate will be distributed according to their intentions.

This means that a family member will need to apply to the Supreme Court for Letters of Administration, and this may result in your estate being distributed in a way that you had not intended. In turn, disputes may arise within your remaining family which can result in unnecessary and expensive litigation.

On 1 November 2017 significant new laws came into effect in Victoria affecting intestate estates through the commencement of the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017.

The majority of the changes affecting the Intestacy provisions will only affect anyone who dies after the amending Act and include:

• Where the intestate leaves a partner and no children that belong to the intestate and the partner – the partner receives the whole estate.
• Where the intestate leaves a partner and there are children that belong to the intestate and the partner – the partner receives the whole estate (this is a significant change).
• Where the intestate leaves a partner and there are children that belong to the intestate but not the partner, then the partner will receive a defined amount (a partner’s statutory legacy which is indexed each year), the personal chattels, interest on the partner’s statutory legacy and half of the balance of the deceased estate. The remaining half of the balance of the estate will be divided equally between the children.
• If there is more than one partner the estate must be dealt with in accordance with a complex statutory formula.
• If there are no partners and only children then the Estate passes to the children, however there is an additional formula to be applied if one of your children has predeceased you.
• If there is no surviving partner or any surviving children, the hierarchy of distribution is in accordance with the statutory “line” of remaining family members.

Before granting leave to apply for an order under the Wills Act 1997 (as amended) relating to a statutory Will, the court must be satisfied that:

1. • the person on whose behalf the Will is to be made, or revoked, does not have testamentary capacity; and
2. • the proposed Will or revocation reflects what the intentions of the person would likely be, or what the intentions of the person might reasonably be expected to be, if he or she had testamentary capacity; and
3. • it is reasonable in all the circumstances for the court, by order, to authorise the making of the Will or the revocation of the Will for the person.

The persons who are entitled to appear at an application for leave (permission to go further) before a court include a legal practitioner representing that person, a power of attorney of that person, a guardian or administrator of that person or any other person who has, in the opinion of the court, a genuine interest in the matter.

This Act also states that if the court uses its discretion to make such a statutory Will, it will be deemed to be valid and will be admitted to probate.

Making an application for leave is complex and all parties interested should be given notice of the matter coming before the court. Parties involved in making the application, or on the other hand opposing the application, need to remember that cost orders may follow the event and the unsuccessful party may be burdened in paying costs.

Pearce Webster Dugdales are experienced in this area and ready to provide advice to you.