The importance of Drafting WILLS

Without a Will, you have no control over who will benefit from your estate. When a person dies without a valid Will, they die 'intestate' and the estate will be distributed according to the provisions of the Administration and Probate Act 1958 (Vic). Conversely, a well drafted Will should provide an effective defence against claims and ensure that your assets are distributed according to your wishes when you pass away.

Each client engagement is personally handled by our experienced team who aim to provide effective handling of your legal matter.

The benefit of choosing Coopers Lawyers to prepare your Will is that we ensure that:

* The likelihood of a person challenging your Will is minimised

* Your Will operates in the manner that you intend; and you receive appropriate advice and take into consideration the matters that are relevant and important to deal with when considering your estate and future care and welfare of your family.

Key requirements for a valid Will

For a Will to be valid, the individual making the Will (the "testator") must generally:

Have Capacity:

Have intention to make an act of testation

Soundness of mind, memory and understanding of:

The nature and effects of the act; and

The extent of the property being disposed;

Normally over 18 years old

Have knowledge and approval of the Wills contents; and

Follow the appropriate formalities, including having the Will in writing and signed by the testator and two witnesses.

Challenging a Will

There are certain scenarios when a person may challenge a Will in Victoria.

Firstly, you may challenge the validity of a Will. Alternatively, a person may still contest or dispute a valid Will if they have not received adequate provision under the Will as part of a Testator Family Maintenance Claim under the Administration and Probate Act (Vic).

Timelines on a claim regarding a Will

A person should under normal circumstances normally bring a claim to challenge their entitlement under a Will within a period of 6 months of a grant of probate or Administration. Beyond this time period, you must seek permission from the Court & be able to explain why a claim was not submitted within the required time.

Persons involved in making a claim

Any person for whom the Deceased had a responsibility to make provision can submit an application to court to contest the Will. Since 'responsibility' does not equate with 'dependence', this can include many types of family relations: even long-term friends or carers.

Criteria to make the claim

The focus of a claim is whether there is 'inadequate provision' made for the person's proper maintenance and support. An individual has a fundamental right to leave property through a Will to anybody they please. However, a moral duty also exists upon individuals to make adequate provision for those closest to them. The Court is given discretion to decide which interest is paramount in any case.

Families and Wills

Coopers Lawyers can advise you about appropriate strategies when drafting your Will to deal with family issues including:

second marriages;

blended families;

difficult in-laws; and

family members who have financial difficulties, or physical or psychological problems.

Power of Attorney

Customarily we advise clients who are preparing a Will to also consider grant a Power of Attorney.

The Will operates in the event of your death; the power of attorney gives another person the legal right to act on your behalf while you are alive.

Coopers Lawyers is able to prepare a power of attorney for you, and

  • advise you how the power operates; and

  • ensure you take into consideration the matters that are relevant and important.

A power of attorney is a legal document authorising a person (the attorney) to act on your behalf. This allows someone you trust to manage your affairs when you are no longer able to do so.

You must be over 18 and understand:

  • The nature of the document you are signing;

  • What powers are being granted;

  • What powers are being retained; and

  • The options to cancel or change the attorney.

The appointed attorney must:

  • Be over 18;

  • Agree to be the attorney;

  • Have legal capacity; and

  • Be someone trusted to look after the welfare of the person giving power.

Types of powers of attorney

  • Enduring power of attorney (financial) to make financial and legal decisions on your behalf.

  • Enduring power of attorney (medical) to make decisions about medical treatment on your behalf if you become incompetent as a result of ageing, mental or physical illness or injury. This does not empower the attorney to arrange euthanasia or refuse sedatives.

  • General power of attorney to act on your behalf in limited circumstances.

  • Enduring power of guardianship to make personal, lifestyle and medical treatment decisions in the event of your incapacity. This does not empower consenting to or refusing any medical treatment.

Estate Planning Advice

A Will generally deals with the personal and real property you own as at the date of your death. There are matters, other than the preparation of a Will that may need to be considered which may include in respect of companies, trusts, superannuation funds and jointly held property. Coopers Lawyers can provide you appropriate advice in respect of matters involving Estate Planning

Executors and Administrators

It's important that an executor receives advice from an experienced lawyer during this process. Estates often involve assets of significant value and potentially competing interests from beneficiaries or others who may not have been provided for under the deceased's Will.

Coopers Lawyers & Executors

We aim to provide fast and effective handling of your legal matter.

Coopers Lawyers provides assistance and advice to executors to ensure that:

  • The executors are attending to their legal responsibilities. For example, this may include action to secure the assets;

  • The decisions they make are proper and minimise any personal liability that an executor may be exposed to;

  • Executors receive reimbursement of expenses & advice about any claim for executors' commission that arises

Coopers and Testamentary Trusts

A Testamentary Trust is a device that allows for certain trust arrangements to be made for a gift in a Will. The terms of the trust are governed by the Will and come into existence upon the death of the testator or testatrix (the Will-maker) to place the trustee in charge of the distribution of the gift to the beneficiary.

The Benefits of Testamentary Trusts

Testamentary Trusts provide a number of benefits including:

  • The ability to organise more complex arrangements and control the distribution of property;

  • The protection of the trust property from creditors of the beneficiary, and third parties such as parents or step-parents, or the beneficiaries themselves since there is a separation of legal ownership from the beneficiaries; and

  • Obtaining tax benefits in certain circumstances where inherited money could be distributed to those with the lowest income and marginal tax rates, such as a minor who could take advantage of the income tax free threshold.

For more information call Coopers Lawyers on (03) 9946 3800 and find out how we can help with Wills and Estates