In this video, Wills & Estates Solicitor Harley Wilkinson talks about the importance of timing in making a Will.
In this video, OMB Solicitors Partner and Wills & Estates lawyer, Richard Dawson, shares the things that happen that make it necessary to update your Will and your Power of Attorney.
Transcript
Hi there, I’m Richard Dawson, the partner in the estate team here at OMB. Today I’m going to be talking about have you updated your will and power of attorney? And is it time for you to do so.
If you haven’t looked at it recently, I’d like you to think about a number of circumstances which might give rise to whether or not you should update your will and power of attorney.
For example, have you actually looked at it in the last five years? Just imagine what you were doing five years ago and I guess everyone life changes.
But what happened five years ago that is different to today, and should that be a circumstance where you would update your will? Have you married in that time? Have you divorced in that time? Have you found yourself a new partner? Have you got more children or grandchildren? And are they named in your will?
You might also consider the beneficiaries and the executors who are appointed in your will and the attorneys appointed under your enduring power of attorney, and ask yourself, are those people the most appropriately named persons to hold those positions under your current circumstances?
If the answer to that is no, then it’s definitely a time for you to update your will and or your power of attorney. So what I’m asking you to do is go and revisit, have a look at your current will and power of attorney and if it needs updating, just reach out to us and we’ll take it over from there and we’ll keep it as simple and straightforward process as we possibly can.
Thanks again for listening.
In this video, Harley Wilkinson, a Solicitor at OMB’s Wills & Estates team, discusses contested estate matters in family provision applications and how our Gold Coast lawyers can help you with your estate planning matters.
Transcript
Hello, my name is Harley Wilkinson, I’m a solicitor in the wills and estates team here at OMB. So I just wanted to talk very quickly about contested estate matters and family provision applications.
So while a lot of what we do here at OMB in the wills and estates team is giving advice about estate planning and estate administration, both in Queensland and New South Wales, we also give advice to executors and beneficiaries in a range of contested estate matters.
Whether you’re in Queensland or New South Wales, an eligible person is able to contest an estate by making a family provision application with the relevant Supreme Court. However, not everyone can make a family provision application.
There are certain eligibility criteria that apply, in New South Wales for example, firstly, you’ve have to be an eligible person, and I’ll get to that in a minute. Secondly, you need to have been either left out of a will or not been left adequate provision, or not received what you thought you might be entitled to.
So eligible persons typically include a spouse and children, although there are certain other categories of people that also fit that description and are eligible to apply.
So the process of applying for further and better provision, making family provision application in either the supreme or New South Wales Court can be confusing and complicated, and there are certainly some differences with respect to the law and the procedure between Queensland and New South Wales.
So there are some strict time limits that apply both between the New South Wales and Queensland jurisdictions, and there are some differences. So rather than wait and let it go, give us a call, get some advice, we can let you know where you stand and what the process is.
In this video, OMB Solicitors Partner, Richard Dawson, talks about how to obtain a copy of a Will after someone dies and how our Gold Coast Lawyers can help you.
In this video, Harley Wilkinson, a Wills & Estates Solicitor at OMB, talks about Enduring Powers of Attorney: what they are; why do you need one; and what happens if you don’t have one.
G’day, my name is Harley Wilkinson, I’m a solicitor in the wills and estates team at OMB Solicitors. I just wanted to speak briefly about enduring powers of attorney. Firstly, what they are, why you need one, what happens if you don’t have one.
So, an enduring power of attorney is a legal document by which you, as a principal, appoint one or more other people as your attorney to make decisions for you in the event that you’re involved in an accident, suffer a medical episode, or you’re just not able to look after your own affairs anymore.
Basically, the enduring power of attorney allows other people to step in and make decisions that you would otherwise be making for yourself after you’ve lost capacity. So these are really important if, say, you’re running a business or you’ve got affairs and other things that are going to keep going, something happens to you and you’re not able to look after that.
So pretty common one that I’ve seen in my experience here at OMB is elderly people who are getting on a little bit, they’ve got to move out of their home or their property that they’ve been living in for the last 20 or 30 years.
It might just be because their health is deteriorating or they’re just struggling to get around a bit more these days and they’ve got to go into an aged care facility.
Sometimes what can happen there is that these clients, something happens and they lose capacity and they aren’t actually able to sign off and transfer their interests in the property or the home they’ve got, and they’re not able to sign up to an accommodation agreement with aged care facilities.
So where there’s no enduring power of attorney or anything like that in place, what these guys need to go and do is apply to the Queensland Civil and Administrative Tribunal, and it’s usually children that get appointed as a administrator and as a guardian.
So, that’s what they have to go through in order to do that, get appointed so they can act and make decisions on behalf of a parent or another relative. Where someone’s got an enduring power of attorney set up, their enduring powers of attorney under the EPOA are able to liaise with aged care facilities.
They’re able to liaise with the title’s office and solicitors in order to sign contracts and sign the land titles forms that are required, firstly, in order to transfer property over to new buyers and then organise with the aged care, so that they can actually get mum or dad or whoever it is sorted out and into new accommodation.
We see these as being really important in those sorts of contexts. So, look, having said that, enduring powers of attorney and enduring documents aren’t just for people that are a little bit older or elderly, they’re also for young people as well.
If you’re involved in a motorbike accident or you’re out surfing on the weekend, you have a bit of a prang, something like that, you really need an enduring power of attorney that’s appointing a family member, a friend, a relative, someone that you can trust and rely on to make decisions that are in your best interests so they can actually step up and help you out and do that when you’ve lost capacity and you’re not able to yourself.
For example, if you’re involved in an accident, you’re in a car accident and you were in a coma, for instance, the enduring power of attorney is allowing someone to make decisions for you while you’re in that state.
So really important in order for you to receive the right medical care and the right treatment that you would otherwise be choosing had you not been involved in that situation to begin with.
In the absence of an enduring power of attorney, basically doctors and other medical professionals will take into account what your family and relatives are saying in terms of what they think is best for you.
But at the end of the day, doctors and other medical professionals aren’t going to be bound by any of that, which is why it’s really important that you’ve got an enduring power of attorney in place so that it’s properly and legally authorising those people to make those decisions for you and in some cases, they can be really important for your health and your treatment and that sort of thing.
We do a lot of enduring powers of attorneys here at OMB Solicitors. If you need some more information, if you want any help getting one done up, give our estates team a call today and have a chat with a solicitor.
In this video, OMB Solicitor Calum Ball gives an overview of the process of purchasing or selling a manufactured home.
In this video, OMB Solicitors Partner Richard Dawson shares his experience dealing with contested estate matters in family settings.
In this video, OMB Solicitors Partner Richard Dawson shares his experience handling difficult contested estate matters and what usually happens when you leave someone out of a Will.
In this video, OMB Solicitor Calum Ball shares insight about purchasing into a retirement village and the required process to get in.
In this video, Wills & Estates Solicitor Harley Wilkinson talks about the importance and benefits of having a Will in place.
In this video, OMB Solicitors Partner, Richard Dawson talks about the new Enduring Powers of Attorney form and what you need to know about it.
The Powers of Attorney Act 1998 has recently been amended to make updates to the existing Enduring Power of Attorney (EPOA) and Advanced Health Directives (AHD) forms.
If you have a current valid EPOA and/or AHD – no changes are required. They are valid and will remain valid going forward unless a change in circumstances or amendments is required.
The current (but very soon to be outdated) EPOA and AHD forms can only be signed up to midnight 29 November 2020.
The new EPOA and AHD forms come into effect from Monday 30 November 2020. The old forms must not be used and if they are signed after 30 November 2020 they will be invalid.
If you require amendments to your current EPOA’s or AHD’s, then they cannot be amended by hand or a written variation and the new format EPOA and AHD forms must be used from 30 November 2020 onwards.
Other relevant changes to the legislation include if you do not have a financial attorney nominated on your EPOA then your spouse, child, next of kin etc cannot act as your financial attorney. Effectively, you will be in a legal black hole in risk guards to financial matters.
Queensland has now recognised New Zealand EPOA’s and they can be registered with the Queensland land titles office. Unfortunately, the reciprocal arrangement does not apply for Queensland EPOA’s are still not recognised in New Zealand.
Finally, remember as from Monday, 30 November 2020 you must use the new format EPOA and AHD forms.
If you have any questions whatsoever about the new EPOA or AHD, please make a time to see one of our Estate Planning Experts at OMB Solicitors.
In this video, our Richard Dawson talks about how you can take your estate planning documents during COVID-19.
When people come to plan out their affairs for the later stages of their life, they are generally encouraged to nominate an enduring power of attorney.
This is a legal document used to appoint a person to make important decisions about their property and/or financial affairs should they lose capacity to do so on their own. By doing so, you can have some control over how your financial affairs are conducted once you lose personal capacity, rather than a public guardian or the courts where no enduring power of attorney exists.
The attorney you appoint can manage your bank accounts, pay bills and other debts, and sell or buy property and assets on your behalf.
An attorney should be a responsible person you trust, and preferably someone with an understanding of, and experience in, managing sometimes complex financial matters. They may be a family member, a close family friend, or a trusted professional such as an accountant, financial adviser or lawyer.
Importantly, you can also appoint more than one person with enduring power of attorney. When doing so, these attorneys can act:
It’s important to seek the benefit of legal expertise when appointing more than one attorney. The people chosen need to be able to cooperate with each other and have the interests of the principal – the person who appointed them – uppermost in their mind when fulfilling the role.
There are numerous reasons a person may appoint more than one person with power of attorney. Perhaps one or more of the people you appoint travels a lot, or perhaps you just want a ‘checks and balances’ approach that joint or several attorneys can bring to their roles in managing your affairs.
Joint attorneys, it must be remembered, need to both agree in order to act, including doing such things as attending a bank together if signatures are needed or to withdraw funds from the principal’s account. This setup can act as a safeguard that both will act without self-interest when it comes to managing your affairs. Conversely, jointly appointed attorneys can sometimes lead to conflict and inconvenience, particularly where, for example, two siblings who do not get along hold the roles and cannot agree on the details of managing your financial affairs, or are not always available to make joint decisions.
Attorneys appointed jointly and severally can make decisions independent of each other, which can lead to mistrust and conflict if there is disagreement on how each of them has acted. Suspicion by one attorney of financial abuse by another could – in a worst case scenario – lead to litigation in order to stop one of the parties acting any further.
There is also the issue of appointing a person who is older or of similar age to you, who may either die or lose capacity before you do. In the case where one of your attorneys dies or cannot continue in their role, what happens next depends on how the attorneys were appointed. Where attorneys were appointed jointly and one of them is either unwilling or unable to carry out the role, the enduring power of attorney will automatically cease. One of the advantages of appointing attorneys jointly and severally, or severally, is that the power continues despite one of them being unable to act. The other attorneys continue to make decisions under the power on your behalf.
People of any age can make an enduring power of attorney so long as they have the mental capacity to understand the nature and effect of the power when they sign the document.
An enduring power of attorney ends:
Enduring power of attorney may also end due to bankruptcy and other legal reasons. In these cases legal advice should be sought.
If your enduring power of attorney has ended and you no longer have the mental capacity to make a new one, the Guardianship Tribunal may be able to make orders so the enduring power of attorney can continue. For example, if your enduring power of attorney has ended because a jointly appointed attorney has died, the Tribunal has the power to reinstate the enduring power of attorney so that it can continue in your best interests.
Appointing an enduring power of attorney is an important decision to be made as part of the estate planning process. As we’ve outlined here, there are pros and cons to empowering more than one person to be an attorney who can manage your financial affairs.
Consulting experienced estate planning lawyers with years of experience in this area of the law is a wise course of action. At OMB Solicitors we can expertly advise you on the benefits and the potential pitfalls when it comes to enduring power of attorney, particularly the issue of appointing more than one attorney. Contact our Gold Coast lawyers on (07) 5555 0000.
Smartphones have put a video camera in the pocket of nearly every person you see, with widespread and profound impacts for various sections of society, including security, surveillance and in particular, the law.
In recent years the prevalence of mobile recording has resulted in a number of court cases debating whether a ‘video will’ made by someone who later passes away can be valid and enforceable. In Australia, for a document to be recognised as the will of a deceased person it must be in writing and signed by the testator (the will-maker) in the presence of two or more witnesses present at the same time. How then, can a video recording of a will be valid?
While the law is often slow to adapt to the legal impacts and implications of new technology, the courts have set down a number of important principles when it comes to video recording your will and more generally, what are termed ‘informal’ wills.
The case of Radford v White decided in the Queensland Supreme Court in 2018 provides a good recent example of this specific issue.
In this case, Radford was the de facto partner of Jay, a 39-year-old man who bought a new motorcycle. Before he picked up the motorcycle, Radford encouraged Jay to record a video in which he directed what he wanted to happen with his assets should he pass away. In the recording, Jay said the majority of his assets should go to Radford and that nothing should go to his “soon to be ex-wife”, White.
Later that day, Jay had a road accident on his new bike, sustaining serious injuries including a severe head injury. Although later discharged from hospital, 14 months later he passed away from an overdose of prescribed painkillers. Radford made an application to the court seeking an order that the video recording Jay had made be considered a valid will, while Jay’s ex-wife, White, opposed Radford’s application.
The court decided in Radford’s favour that the video recording did form Jay’s will. It found that:
The decision in Radford v White joined a number of other cases where it was found a document other than a written, signed and witnessed will can operate in that capacity for the deceased, including:
Despite the decision in the court cases above, it’s not advised you rely on a video recording of your will or other informal means in order to have your wishes carried out after your death. A properly executed written will remains the surest way to ensure your instructions are adhered to when you’re no longer here.
By making a video will, you leave it in the hands of the courts to determine whether it is a valid expression of your wishes. If the court decides the recording is not valid (and there is no other will), you could be declared intestate and your assets and belongings be distributed by the state without taking account of your wishes.
In determining the validity of an informal will such as a video recording, a court will take into account:
It should be noted that the onus of proof that the video is the will of a ‘capable’ testator lies with the person (usually one of the beneficiaries) claiming it is the deceased person’s will. The court may read direct statements and notes by the deceased, and evidence about when and how the video was recorded, to make its decision.
Also note that if a statement in a video recording which purports to be the final will of the deceased conflicts with the terms of a written will in their name, the written version will prevail.
While there are judgments in Queensland and some other states which have supported the validity of informal wills in the form of video recordings, preferring this format to that of a written, properly executed will remains ‘Russian roulette’ in the eyes of legal experts in estates and wills. There is no guarantee a court will come to the same conclusion about a video will in a case based on similar facts.
In the end, to guarantee your instructions are carried out as you want them to be after your death, it’s best to make a proper will with the advice of legal experts experienced in estates and wills, such as OMB Solicitors. This way you don’t leave it to chance that your will is legally enforceable, avoiding a potentially costly mess for your beneficiaries. If any of the issues raised in this article provide you with questions or concerns, contact Gold Coast Lawyers today on (07) 5555 0000 or [email protected]
In this video, Litigation and Dispute Resolution Senior Solicitor Cameron Marshall explains how we can help you with Protecting your Assets – Property Purchase Agreements.
In this video, Wills & Estates Solicitor Steven Mahoney talks about Superannuation myths, who should have a Will and other reasons why it’s important to be prepared in the event of your death.
My name’s Steven Mahoney and I’m an associate at OMB Solicitors. Today I’m going to take you through the five common myths associated with estate planning.
In order they are, one that superannuation forms part of your estate. Two, that if I die, everything will go to my spouse anyway. Three, that estate planning is only for the wealthy or elderly.Four, that is economical and cost efficient to draught my own will, and five, that anyone can contest my will, so what’s the point of drafting one.
Turning to these in order of the points so, superannuation forming part of your estate. This is often the light bulb moment for a lot of my clients when I advise them that your superannuation is actually governed by an independent piece of legislation and doesn’t form part of your estate.
This is further compounded when I tell them that your superannuation can only be gifted to certain dependents which are as part of your superannuation.
Now, a dependent under the superannuation provisions is either a spouse, a child, someone who you’re in an interdependent relationship with, or your legal personal representative, which is the executor of your will.
This is again important because if you do not have what is called a binding death benefit nomination, which is a fancy word for a will for your super, it is an independent trustee of the industry super fund who will make this decision for you.
Now, there are three certain documents that you can implement to ensure that your superannuation benefits do pass to your nominated dependent. Now, this is via a non-lapsing binding death benefit nomination, which will ensure that it doesn’t lapse a binding death benefit nomination.
Which is usually only valid for a period of three years, or a non-binding death benefit nomination, which is purely just a wish that is given to the trustee to make a decision at their discretion.
So turning to point number three, which also does tie into the superannuation, is that estate planning is only for the wealthy or the elderly.
Now, because a lot of people do have a death benefit or life insurance policy attached to their superannuation, people often neglect to think of the actual size or value of their estate, and quite often this is a lot larger than people give consideration to.
It is also extremely important to give rise to other things such as your digital assets or social media platforms and who you may wish, or more importantly, may wish not to have access to following your passing.
There is also the importance of appointing a guardian for any minor beneficiaries or minor children as well as gifting pets to any certain individuals which you may see fit. Point number two is what’s the point of having a will that everything will go to my spouse anyway?
If you die without a will, you are deemed to have died intestate. Now, if you do die intestate, there are the intestacy provisions of the relevant act which will apply. It is therefore essential to ensure that you do have a will, to ensure that the intestacy provisions of the act aren’t enlivened in which a set formula will dictate which beneficiaries are to receive what.
Point number four is that it is economical and beneficial to draft your own will. Now, many people aren’t aware of the intricacies or important provisions which must be contained within a will.
Now, this includes the important revocation provision, the appointment of executors, the importance to ensure that a will is witnessed by two independent parties who aren’t a beneficiary of the will or cannot be a spouse of any of those beneficiaries, and point number five is that anyone can contest a will and this is obviously a big grievance for a lot of clients who think, what is the point of establishing a will, anyone will contest it.
Now, people often have internal family conflicts, either with siblings, parents, but it’s very comforting for the fact to advise clients that the only eligible applicants to contest a will is a spouse, a child, which also includes a stepchild and an adopted child, as well as someone who is a financial dependent.
Now, if you don’t fall within these categories in Queensland, you are unable to contest a will. So in order to contest a will, there is also consideration which must be given to the timeframe of doing so.
In Queensland, you must notify an executor within six months of your intention to make a claim upon an estate, and you must also file court proceedings within a court of competent jurisdiction within a period of nine months.
It is important to realise that each state does have their own rules which are applied to contesting an estate, and one which is very important is in New South Wales, in which a notional estate is also given consideration as to your trust and companies and your involvement with those as well as grandchildren can contest an estate.
So I hope this video has been of assistance and we welcome you to contact any of our experienced members here at OMB Solicitors if you do wish to further discuss your estate planning affairs.
In this video, Wills & Estates Solicitor Steven Mahoney explains why it’s important to have these in place even before you take a trip overseas.
My name is Steven Mahoney from OMB Solicitors, I’m an Associate here and I’m going to take you through today briefly the explanation of what is a will and an enduring power of attorney and the importance of having those documents in place before you duck off to a quick trip overseas, or it might be an extended vacation.
Firstly, it’s pretty important to understand what is a will and what is an enduring power of attorney, they aren’t concurrent documents. So taking through firstly, an enduring power of attorney is a document which is in existence whilst you’re alive and a will comes into play and only comes into play upon your passing.
So the first thing in many, people head off overseas, they’ve got considerable assets back home, don’t have their estate planning in order. What if something goes wrong? That’s what I want to take you through today and the potential implications that’ll have for your family and also potentially for your loved ones.
So the enduring power of attorney is going to be a document that deals with if something happens to you overseas and we need to take care of your financial matters or your personal matters, that document is going to appoint someone to deal with that on your behalf.
So that might be a parent, it might be a partner, it might be a friend. Having that in place is extremely important and sometimes what I’d say is the most important document you’ll ever sign, because when you’re dead, you’re dead, you don’t have control of that.
But whilst you’re alive, you want to make sure that someone you trust is dealing with your financial manners, both personal and financial, in a manner you see fit.
With your will, we also need to make sure that you’ve got that in play if something were to happen to ensure that your assets are going where you wish to your loved ones and to those who you obviously desire, and one of the things that many young people think, they don’t believe they do have an estate but it’s important to understand your superannuation as well, which might have a death benefit component attached to it, which can have some sizeable amounts.
That in essence doesn’t form part of your estate. So it’s extremely important whether you do have an industry super fund with one of the main industry funds to ensure that you have a binding death benefit nomination in place.
Again, that’s just a fancy word for a will for your super, but we need to make sure as well that that’s going to go across to those parties which you wish to see fit, and it’ll obviously make sure that we take into account both your will, which deals with all of your estate, as well as your superannuation.
Getting those in play, it can be very simple, it can require a quick, simple chat which we can set up in a matter of days. Come in, have a chat to us, get everything sorted to make sure that nothing happens to you whilst you’re overseas and to make sure everything’s in place for now and into the future.
