Wills and Estate Planning


Estate Planning is more than simply making a Will. It involves a complete assessment of where you are now, deciding whom you would like to inherit everything that you have worked for during your life, and formulating a plan to best achieve your wishes. Estate Planning also takes into account circumstances where you are not able to take care of your financial, legal, personal, lifestyle decisions during your lifetime due to injury, illness or old age. A large problem in the Estate Planning arena is that people often misunderstand the true function of the various documents that fall under the Estate Planning banner, and what can and can not be dealt with in a Will. For example, assets held jointly, superannuation with a valid binding death benefit nomination in place, and money held in a family trust are assets that, upon your death, will not pass according to the terms of your Will, so you can’t leave them in your Will. There also may be circumstances where Trusts should be established after your death, or life interests created to best quarantine and preserve your assets to ensure that they remain available for distribution as you wish.


A Will is one of the most important documents you will ever sign in your life. It is your final say as to how you would like your Estate to be distributed once you have passed away and it can only be contested in court. Estate Planning is more than simply drawing a Will. In order to ensure that your wishes are carried out upon your death, you need a well written, clear and accurate Will drawn in accordance with current Succession Laws. The Will needs to be drafter taking into account your complete personal and financial circumstances and its existence in the context of other laws such as taxation and Family Provision legislation. Such an approach ensures that, as far as possible, taxes and family provision claims are kept to a minimum and your assets end up benefiting those whom you wish in the most feasible way.


A Will can be challenged for a variety of reasons ranging from improper execution through to claims that it did not adequately apportion your assets to potential or actual beneficiaries. For example, a partner of the deceased may contest the Will if they feel that they have not been adequately provided for, or that they received an unfair proportion in comparison to the deceased’s children. Comprehensive Estate Planning can ensure that the legal formalities are satisfied so that the scope for a dispute about the terms of a Will are reduced.


A Testamentary Trust is simply a trust, a structure that most of us are familiar with, the only difference being that it is created under the terms of your Will. The Trustee named in the Will controls the assets of the Trust and can be the same person who was appointed as Executor or a beneficiary of the Trust. For example, an adult child can be the Trustee of their own trust, and can also be Executor. Testamentary Trusts can be used for a variety of purposes including to allow flexibility to care for young children, to minimize taxation via income splitting between a number of beneficiaries, to protect spendthrift beneficiaries from themselves and/ or to protect inheritances from a beneficiary’s creditors or relationship breakdown as far as possible. Wills incorporating one of more Discretionary Testamentary Trusts are a more complex Will and should be considered once you have a solid picture of the exact nature of your assets and personal situation so as to ensure accurate planning and optimal use.


What future do you envisage for your children? If you have young children, your Will should allow for the appointment of one or more Testamentary Guardians to care for your children in the event that you have died. We are also able to help you prepare Guidelines to your Testamentary Guardians to provide a detailed outline of your thoughts and wishes for the care and upbringing of your children.


Obviously planning a funeral can be a very emotional time in which significant decisions are needing to be made, and often family and friends may have a different understanding of what your wishes would be. Leaving detailed instructions may seem unnecessary or insignificant to you whilst you are alive and many are happy to “leave the arrangements in the hand of my loved ones”, however detailed instructions to guide your Executor, family and friends can make their job a whole lot easier during an emotional time and save arguments between those who are left to make the arrangements. We can assist you in preparing a detailed Statement of Wishes to be stored with your Estate Planning documents to guide your Executor as to your wishes surrounding your funeral and memorial services.


If you are unable to look after your financial and legal affairs if you are permanently or temporarily incapacitated through illness, accident or old age you will need a trusted friend or relative to do this for you as your Attorney. You may feel that you are currently in control of your affairs and that you are too young, or do not require assistance from family or friends, however nobody knows what is around the corner and having your affairs in order brings great peace of mind. An Enduring Power of Attorney document allows you to nominate a person or group of people who will step in to take care of your legal and financial affairs for you when you are no longer able to. Making the appointments now, whilst you have the opportunity to do so means that you are able to control who takes the reigns when you no longer can. If you do not have an Enduring Power of Attorney when you need one, then your next of kin would have to apply to the Guardianship Tribunal for the appropriate authority which is a lengthier and more complex process than simply putting an Enduring Power of Attorney in place. This would also mean that that you can’t necessarily control who is making these important decisions for you.


Similarly to an Enduring Power of Attorney, an Appointment of Enduring Guardian is the appointment of someone, or a group of people, to make decisions for you where you are not in a position to do, however, these are decisions pertaining to your health, lifestyle and wellbeing. That is, what medical treatment you are to receive, where you are to live, what therapies you are to receive etc. It is important to understand that this appointment only operates in situations where you are incapable of making your own decisions such as if you were in a coma, or seriously injured, and is only operable for that period of incapacity. Advanced Health Care Directives can also be incorporated into this document (often referred to by people as “non-resuscitation directions”) which clearly states how you would want to be treated in an end of life situation