WILLS, ESTATE PLANNING AND ADMINISTRATION AND POWERS OF ATTORNEY
Our lawyers have extensive experience in the area of estate planning and are able to offer practical advice and assistance in the preparation of wills including wills incorporating testamentary trusts.
We are well placed to assist families in the area of succession planning and able to recommend appropriate structures for their financial affairs so as to minimise costs and tax implications for beneficiaries. The lawyers at AMS are aware of the sensitivities in this area and their focus is on providing a personalised, friendly and prompt service.
We have prepared an information sheet that may assist in understanding estate planning which we would be pleased to forward to you upon request but we recommend that you obtain specialist advice in relation to your specific situation.
Power of Attorney
We recommend that every adult has ‘powers of attorney in place’. Giving another person your ‘power of attorney’ simply means that you give that person the power to act on your behalf (for example, to buy and sell property and consumables for you or operate your bank account). It does not mean you lose control over your affairs. You can still deal with all matters, while your ‘donee’ (the person you appoint to act on your behalf), can do those things which you have authorised.
Enduring Power of Attorney
An enduring power of attorney is a power of attorney that continues to operate even though you may later become of unsound mind, for example if you are unable to communicate after a stroke.
Medical Power of Attorney and Power of Guardianship
You can also elect to appoint someone to make medical and personal decisions on your behalf in the event that you become unable to make those decisions for yourself. To do so you must be of sound mind.
AMS LAW can assist in the administration of an estate, which may entail the following:
- application to the Supreme Court for “Probate” – this is where the will is tested and deemed to be a valid legal document and permission given to have the estate administered
- sell or mortgage the real estate of a deceased person for purposes of administering the estate then pay the deceased person’s debts or funeral expenses
- distribute the proceeds of the sale of real estate to beneficiaries under a will (or to people otherwise entitled to a share of an estate);
TESTATOR’S FAMILY MAINTENANCE OR PART IV APPLICATIONS
Our laws recognise the wishes of a person to dispose of property upon their death where that person has made a Will at a time legally capable of doing so and without undue pressure or influence. In those circumstances there is little opportunity of challenging the Will’s substance.
The freedom to make a will on whatever terms one wishes however is restricted by the overriding consideration that a person must make provision for the ‘proper maintenance and support’ of a person ‘for whom he or she had a moral responsibility to make provision’. This may include a spouse, children or others who had a special relationship with the deceased. Any such person within that class who considers there is inadequate provision made out of the estate of a deceased may bring an action known as Testator’s Family Maintenance (TFM) or Part IV Application. Such Application will require the Supreme Court to order that the estate be distributed as it deems appropriate in the circumstances.
For an application to be successful, an applicant must establish that: a special relationship existed with the deceased and as such the deceased had a moral obligation to make proper provision for the maintenance and support of the applicant; and that the applicant has an economic or financial need.
A Court will also examine the relationship between the deceased and the applicant and give consideration to the applicant’s character and conduct towards the deceased and determine whether such conduct should disentitle them from receiving any benefit from the estate.
An application will not be successful merely because the Will was unfair or unjust in its distribution.
An application against a legal personal representative of the estate (Executor or Administrator, where there is no Will) may be made within 6 months from the date of a Grant of Probate or Letters of Administration. In special circumstances, however, the Court may grant an extension as long as the estate has not been completely administered. The legal personal representative has a duty not to distribute the estate of a deceased until 6 months after the date the grant has been obtained.
Once an application is made, it is likely the Court will order that the claim be referred to and settled at a mediation hearing and it is increasingly unlikely that a court hearing is required. The legal costs of making a Part IV Application or defending an action arising from such application are usually ordered to be paid out of the estate of the deceased providing the claim is not frivolous or vexatious.