Wills + Estates

In Australia, individuals over 18 with the mental capacity to understand their actions can make a will. Under certain conditions, courts may approve a will made by a minor or for those deemed mentally incapable, subject to court approval.

Passing away without a valid will, known as “intestate,” results in your estate being distributed under the Administration and Probate Act 1958 (Vic), potentially contrary to your wishes. For example, if you leave behind a spouse and a child, you might wish for the whole of your estate to go to your spouse during their lifetime and then to the child or children on the death of your spouse. However, intestacy rules require your estate to be distributed between your spouse and child/ren. This situation could mean your spouse may be forced to sell the family home to pay your child/ren a share. Other disadvantages of dying without a will include:

(a) You cannot appoint the person(s) who you wish to administer your estate;
(b)You cannot appoint the person(s) who you wish to act as guardian for your children;
(c) Partners, stepchildren, friends, and favourite charities may miss out;
(d) Your assets may be distributed in a way that places them at risk, for example, by distributing them to a person who has become bankrupt or is going through a family law dispute.
(e) Your estate may not be handled in the most tax-effective manner.

Intellectual property, including copyrights and patents, is a crucial asset that you can bequeath through your will. Think carefully about your rights concerning songs, patents, photographs, books, artistic works, or any other intellectual property you may have. Consider how you would like these rights to be managed after you die.

If you die without a will, your intellectual property rights will be distributed per the intestacy rules, potentially misaligning with your wishes.

If you have a will, it is important that you expressly deal with the issue of intellectual property rights. Assign the most appropriate person, business, or trust to manage your intellectual property rights. Failure to specify this can result in your intellectual property being managed as part of your “residuary estate” — the default category for assets not individually allocated in your will.

Your will can only distribute assets you own personally. A gift of an asset belonging to a trust or company will not be valid. However, a carefully drafted will can help you grant the preferred individual authority over the relevant trust or company. This authority typically enables them to effectively manage the trust’s or company’s assets.

Sometimes, despite the best intentions of the deceased person, a gift under a will can have undesired financial consequences on the beneficiary.

A gift under a will can be disclaimed. However, the rules are complex and vary depending on the particular circumstances of each case. If you wish to disclaim a gift, you must act promptly. The Courts have held that a person can be deemed to accept a gift if s/he has knowledge of the gift and does nothing. Once you have accepted a gift, you cannot disclaim it.

Dying without a will, known as dying ‘intestate’, means your estate will be handled and distributed according to the specific intestacy rules of your state or territory in Australia. These laws are designed to distribute your assets in a predefined manner, which might not align with your wishes. Here’s a general outline of what happens:

1. Estate Division:The division of your estate is governed by intestacy laws, which differ across Australian jurisdictions. Typically, these laws prioritise your closest relatives, beginning with your spouse and children.
2. Spouse’s Entitlement:Your spouse, which includes married, registered partnerships, de facto, same-sex, and heterosexual partners, usually receives the largest portion or the entirety of your estate, depending on other surviving relatives and the specifics of the estate.
3. Children and Other Relatives:Should there be assets remaining after your spouse’s entitlement, they may be distributed among your children, grandchildren, and possibly other relatives in a predetermined order of succession.
4. No Immediate Family:If no immediate family members can be identified, your estate may eventually pass to more distant relatives or, in some cases, default to the state or territory government.
5. Estate Administration:In the absence of a will, a court-appointed administrator will oversee your estate, managing and distributing your assets according to the applicable intestacy laws. This process can often be lengthy and complex, potentially leading to disputes among surviving relatives.

A Power of Attorney (POA) is a crucial legal document that enables a person (the principal) to appoint another individual (the agent or attorney-in-fact) to make decisions on their behalf concerning their property, finances, investments, or healthcare. This arrangement is particularly important for managing affairs when the principal cannot do so due to illness, incapacity, or extended absence.

This legal document facilitates the smooth management of your affairs, providing peace of mind that your interests are protected during unforeseen circumstances. It is crucial to appoint someone trustworthy and aligned with your values.

Contesting a will is a complex process that requires a deep understanding of legal procedures and a clear justification for the challenge. Here’s what you should know if you’re considering contesting a will in Australia:

• Grounds for Contesting:The essence of contesting a will lies in proving either exclusion from the will or that the provisions made for you are unfairly insufficient. This process is often pursued through a Family Provision claim, also known as a Part IV or Testator’s Family Maintenance claim. Such a claim argues that the testator (the person who made the will) failed to make adequate provision for you.
• Eligibility to Contest:Australian law specifies who may contest a will, typically including spouses, children, grandchildren, former spouses, registered caring partners, and, in certain cases, individuals who were financially dependent on the deceased. The legislation defines eligible persons, which can vary between states and territories.
• Time Limits:It is crucial to act within the statutory time limits, which differ by state. For instance, in Victoria, an eligible applicant has six months from the issuance of a Grant of Probate or Letters of Administration to contest a will. Failing to meet these deadlines can significantly reduce the chances of a successful claim.
• Mediation:Before court proceedings, mediation is often encouraged as a less confrontational and more cost-effective means of resolving disputes. This step can help both parties reach an agreeable solution without requiring a lengthy court process.
• Family Provision Claim:If mediation does not result in a settlement, the next step is to file a Family Provision claim with the Supreme Court. This claim requests that the court consider your needs and revise the distribution of the estate to include what you believe to be a fair share.

Securing expert legal advice is essential, given the complexity and potential for emotional distress when contesting a will. Our experienced Melbourne wills and estate lawyers are adept at navigating estate disputes, ensuring a personalised approach that aligns with the interests of our clients and seeks to honour your relationship with the deceased.

Securing your assets for future generations is crucial for those aiming to preserve their wealth for their family’s long-term benefit. Here are key strategies to safeguard your assets in Australia:

• Asset Protection Strategies:Utilise various trusts, like discretionary, unit, hybrid, family, and testamentary trusts, each offering unique protection and control over asset distribution.
• Estate Planning:Essential for detailing how to distribute your assets, estate planning includes appointing an executor to ensure your wishes are executed accurately, considering tax implications and potential legal challenges.
• Life Insurance:A strategic asset protection component that provides liquidity, covers estate taxes, and prevents the need to sell non-liquid assets under adverse conditions.
• Wealth Preservation Techniques:Protect your wealth from creditors, legal claims, and liabilities while optimising tax efficiency through strategic investments, tax planning, and protective legal structures.
• Professional Consultation:Collaborating with experts in legal and financial fields is vital for developing effective, compliant asset protection strategies aligned with your goals and the welfare of subsequent generations.

With advice from seasoned will planning attorneys, integrating these strategies ensures your legacy is protected and your heirs’ prosperity is secured, giving you peace of mind that your wealth is well-prepared for future growth and preservation.

In Australian law, an Enduring Guardian is a person appointed to make personal health and lifestyle decisions for someone who can no longer do so due to incapacity. This role involves decisions about the individual’s living arrangements, healthcare, and personal services tailored to their preferences. To appoint an Enduring Guardian, one must be mentally capable at the time of appointment, with the role becoming active only upon the appointee’s incapacity. While an Enduring Guardian has significant authority over personal and healthcare decisions, they cannot make financial, legal, or certain other decisions requiring a separate Power of Attorney.