We can help with the following:
- Preparation of Wills
- Administration of Wills
- Administration of Estates
- Testamentary Trust Wills
- Succession Issues
- Powers of Attorney
- Advanced Health Directives
- Estate Litigation
A Will is a legal document the sets out a person’s wishes and directions as to how their estate and assets are to be distributed following their death.
As well as allowing you to nominate to which family members or friends your assets will be passed, a valid Will lists a Executor and may make provision for a Guardian to take care of any young children.
If you pass away and you do not have a Will, or your Will is deemed invalid, then you are said to have died Intestate. In such circumstances the law imposes a method of distribution of your estate and assets that may be contrary to your intentions. This may create significant difficulties for those you leave behind.
Your Will should be reviewed following any significant life event, such as a marriage, divorce or when entering or leaving a de facto relationship.
Any person over the age of 18, who is of sound mind, can make a Will. A minor may make a will if he or she is married or contemplating marriage, or if they have permission from the court.
The drafting of a Will can be simple or complicated, depending on your unique circumstances. There may be taxation and superannuation issues that need to be taken into account and if there is a business or family trust, professional legal advice is crucial.
Will-makers must be of sound mental capacity and be over the age of 18, unless the minor is married or contemplating marriage, or has approval from the court. Also, anyone is allowed to draft a will, however the will must be signed and witnessed properly otherwise application for probate may prove to be difficult.
Challenging a Will
It may be possible to challenge the validity or intention of the Will if the Will was incorrectly executed (for example not witnessed correctly) or if the deceased did not have the capacity to make the Will.
It is not uncommon for a person to be dissatisfied in regard to how the assets of an estate are distributed, despite the intentions of deceased being clearly stipulated in their Will. For example, where the children receive the entire estate and the spouse of the deceased receives nothing. Or where one child is favoured over another child. It may be the case that the entire estate is left to a pet for its ongoing care in the lifestyle it has become accustomed.
If you believe that you have been inadequately provided for in a Will, there may be circumstances that allow you to contest the Will. You may be able to bring a claim against the estate for adequate and proper maintenance. Such an action is known as a Family Provision Application.
To be eligible to commence a Family Provision Application, a person must fall under one of the following categories:
A spouse (including a de facto partner or a former spouse of the deceased who was financially dependant on the deceased)
A child-A dependant (including a person wholly or partially dependant on the deceased at the time of death and may include a parent of the deceased or the parent of a child of the deceased who is under 18 years of age or a person who is under 18).
To assist you prepare a legally valid Will and for advice tailored to your circumstances please contact Armstrong Kutz Lawyers