Wills and Estates

Last Will and Testament

A Last Will and Testament more commonly referred to as a “Will”, is an important legal document which only comes into effect after your death.

There is no legal requirement for individuals to make a Will, however it is recommended. A Will documents your wishes as to how your ‘Estate’ is to be divided. Your Estate is everything that you owned and owed at the date of your death. Should you not document your wishes then your Estate will be distributed according to the State laws.

Your Will outlines who you would like to inherit your Estate after you die, it also sets out who is to be responsible for carrying out what your Will states. Your Will can also set out any wishes you may have in relation to funeral arrangements, organ donation and guardianship of any minor children.

If you do not own real estate you may think you have no need to make a Will. However, there may be entitlements that are payable to you after your death. You may further wish to gift other items that hold sentimental but not monetary value.

It is highly recommended that your Will be updated after important milestones such as marriages, divorces, birth of children or grandchildren or deaths of loved ones.

Our solicitors charge a fixed price for the drafting of a simple Will. Once drafted, we can also hold your Will in a secure place for no additional fee.

Medical Treatment Decision Maker and Power of Attorney

A Will only comes into effect after your death, however a Power of Attorney and Medical Treatment Decision Maker enables a person to appoint one or more persons to manage your affairs while you are living.

By appointing a Power of Attorney you are authorising a third party, an Attorney, to make decisions on your behalf in relation to financial matters such as accessing bank accounts for the payment of expenses and /or personal matters such as determining your place of living.

The appointment can relate to a specific event and can be limited in application such as managing your affairs whilst you travel overseas (a General Power of Attorney), or can be used more broadly for all matters in the event you are incapable of making your own decisions (an Enduring Power of Attorney).

By appointing a Medical Treatment Decision Maker you are giving the person appointed the authority to make certain medical decisions in circumstances where you are unable to do so.

Our solicitors charge a fixed price for drafting Powers of Attorney and Medical Treatment Decision Maker documents. Once drafted, we can also hold your original documents in a secure place for no additional fee.

Guardianship and Administration

Where a person does not have capacity, or has lost capacity, for example by reason of a medical condition, such as dementia, intellectual disability, mental illness or an acquired brain injury, they cannot appoint an Attorney or Medical Treatment Decision Maker. In these circumstances there may be a need for someone to obtain legal authority on behalf of another.

In these circumstances the person who wishes to manage that person’s personal and financial affairs must seek a Guardianship or Administration Order from the Victorian Civil and Administrative Tribunal (VCAT).

A ‘Guardian’ is a person who deals with the personal decisions of the person, where as an ‘Administrator’ is to take care of the financial decisions of the person.

Our solicitors can assist with applying to VCAT for orders for the appointment of guardians and administrators of people who lack decision making ability or for a review of an existing order.

Probate and Letters of Administration

If a person passes away leaving a Will, they will usually name a person who is responsible for carrying out the instructions left in their Will. This person is called the ‘Executor’. The Executor will most likely need to apply for what is known as a Grant of Probate.

A Grant of Probate is an order of the Supreme Court which allows the Executor to deal with the belongings of the deceased. Once granted the Executor is then able to carry out the wishes of the deceased as stated in their Will.

However, if a person passes away leaving no valid Will, the next of kin or the major beneficiary, will need to apply for what is known as Letters of Administration to be appointed as the Administrator of the Estate. This allows the Administrator to deal with the belongings of the deceased as though they were appointed the Executor under a Will. The Administrator will distribute the belongings of the deceased as set out by the law.

Our solicitors are able to advise you whether a Grant of Probate or Letter of Administration is needed and we will assist you with preparing the documents required to lodge the applications.

Our solicitors are further able to liaise with other involved parties, and are able to contact banks, employees, superannuation funds and beneficiaries on your behalf and are able to assist with winding up and administering the Estate including transferring property and closing bank accounts.

Estate Litigation

Whilst a person has a right to make a Will and outline who should inherit their Estate it may be that an application is made contesting the Will. There is no blanket rule when it comes to Estate Litigation; however there are four main categories which claims fall into as follows:

1. Testator Family Maintenance Claims or Part IV applications:

These are cases where a family member believes they were not properly provided for in a deceased’s Estate (whether by law or by the terms of a Will), and that the deceased had a moral responsibility to provide for them. These claims are very limited with regard to who may make these types of applications.

2. Lack of Testamentary Capacity Claim:

These are cases where it is believed that the Will-maker was not capable of making a will. The most common example of this is where it is believed that the Will-maker was suffering from a mental illness which caused them to not have the required knowledge or understanding of what he or she was signing.

3. Undue Influence Claims:

There are claims where it is said that the Will does not reflect the Will-makers true intention as at the time of making the Will, the Will-maker was ‘unduly influenced’ for example by receiving pressure from another person to either make the Will or put a certain thing into the Will.

4. Breach of Trust claims:

These claims are where a beneficiary believes an Executor or Trustee has failed to act appropriately in the administration of the Estate or trust and is thus asking the Court to remove the Executor or Trustee. A common example is where an Executor or Trustee has failed to distribute the assets of the Estate.