Why do I need a Will?
As previously discussed, it is important that you either amend your Will, if you have an existing Will, or if you do not have a Will, it is important that you now make a Will. I make it a practice to inform all of my family law clients both verbally and in writing, of the importance of having a correct Will because unfortunately, people tend to put off these things. I have had to provide advice to families or children of the deceased on occasions where the person told me they intended to make a Will, or change their Will, but never got around to it.
If anything was to happen to you in the near future, particularly before any divorce was finalised, if you died without a Will, then it is likely that your Estate would pass to your spouse regardless of what you wanted or intended. If you died and you had a Will that was not in accordance with your wishes, but you have not prepared a more recent Will or rescinded the current Will, the Estate may still be administered in accordance with this
Will. Your family may have a remedy under the Succession Act however, even if they have that remedy, it will involve commencing proceedings in the Supreme Court of New South Wales and spending a substantial amount of money in legal fees that might have been saved if a correct Will existed.
Additionally, superannuation and life insurance are generally treated as assets separate from a Will and, at least initially, will be distributed in accordance with the Trustee’s decision and not necessarily in accordance with any Will. It is important that you contact your superannuation company and any life insurance company and ask for a binding death benefit form, so that you can formally change who the beneficiaries will be in the event of your death. It is important that you repeat this process every three (3) years. Again, some members of your family may have a remedy against the Trustee’s decision but in certain situations, there may be no remedy, and if there is a remedy, that will involve commencing legal proceedings, which again, might have been avoided if you had simply updated your details.
If you have any questions about these documents, or need any assistance completing a binding death benefit form, please do not hesitate to contact us.
Power of Attorney and Enduring Guardianship
You also need to consider what will happen if you are seriously injured or become very sick so that you cannot look after yourself or do not have mental capacity to make decisions for yourself any more, but you are still alive.
In relation to the Power of Attorney and Appointment of Enduring Guardian (or living Will) documents, now that your relationship is over, it is no longer self evident who would make important decisions for you, and in any event, if you require assistance from a friend or family member to make decisions, these documents will make both of your lives easier as they give specific authority to make those decisions. Again these are documents that cannot be made after they are necessary, that is, they cannot be made after you have lost capacity to make decisions.
Now, while you still have full mental capacity, you can sign documents (Appointment of Enduring Guardianship and Power of Attorney) which set out who will make decisions for you if you lose mental capacity and give guidance as to what they should do. You can then ensure that the person making decisions for you is someone you trust, and who you would want to be speaking for you if you were not able to do so.
While no one likes to think about their death or the possible loss of their mental capacity, the time to do something about it is whilst you are healthy and your mental capacity cannot be questioned.
Naturally we will be happy to help you prepare any of these documents. You are welcome to come and see us for a no obligation consultation to discuss any questions you may have. If you have an existing will we will look at it for you to see if any changes are needed, as part of the initial consultation.
Our current charges for wills, powers of attorney and/or appointment of enduring guardian are:
WILLS – $500.00 incl GST
POWER OF ATTORNEY AND ENDURING GUARDIAN – $500.00 incl GST
WILLS, POWER OF ATTORNEY AND ENDURING GUARDIAN – $700.00 incl GST
Home Visits – add $125.00
WILLS – $650.00 incl GST
POWER OF ATTORNEY AND ENDURING GUARDIAN – $650.00 incl GST
WILLS, POWER OF ATTORNEY AND ENDURING GUARDIAN – $900.00 incl GST
Home Visits – add $125.00