Wills & Estate Planning

Making a will

Under recent Queensland case law, it is becoming more frequent for wills to be set aside due to invalid clauses or challenged by those left out of your will. The costs of a professionally drafted will is minimal compared to the emotional and financial costs that can be incurred if you die without a valid will or one that does not effectively carry our your intentions.

We advise our clients on estate planning issues to minimise the risk of this and to prevent their executor or beneficiaries having to deal with future legal or financial problems.

- Every person over the age of 18 should have a valid will, no matter what assets they own. If you are employed, your compulsory superannuation contributions include a life insurance policy and on your death it will need to be distributed.
- Blended or extended families: Proper estate planning is of particular importance when dealing with blended and/or extended families. People who are considered 'dependant' on you may be eligible to make a Family Provision Application if you have not provided adequately for them in your will.
- Superannuation interests - recording your intentions in regards to your superannuation in your will may be taken into consideration by your superannuation fund.
- Bequests to charities or friends - the proper creation of a will is important in correctly defining who is to receive what assets out of your estate. Improperly drafted clauses may be considered void and struck out of your will altogether.
If you do not have a valid will the rules of intestacy decide who receives your assets, which could result in an unsatisfactory outcome and much anguish for your immediate family.
Our legal team will work with you to create a will that is right for your individual circumstances as well as meeting all legal requirements for validity.

Disputing a will

Family Provision Application
If you believe you have been inadequately provided for under a will, you may be able to make a Family Provision Application ("FPA") to dispute the will. Queensland legislation allows an eligible person to make an application to the Court if they have not been adequately provided for under a deceased person's will.

- Spouses (including de facto spouses)
- Children (including adult children and step-children)
- Dependents - which are defined as someone who was wholly or substantially maintained or supported by the deceased and who is a:
  - A parent of the deceased;
  - Parent of a child of the deceased; or
  - Child of the deceased under 18
- The size of the Estate;
- The nature and duration of your relationship with the deceased;
- Any contributions you made to the deceased's Estate;
- Any promises the deceased made to you;
- Your financial needs;
- The financial needs of the other beneficiaries or eligible individuals;
- Any conduct you have participated in that would be considered 'disentitling'.
If you believe there are issues around the legitimacy of the creation of the will itself, there are various avenues through which you may be able to contest the will.
This may arise when the deceased suffered a mental condition at the time of making the will. For the will to be valid, the deceased must have been of sound mind, memory and understanding at the time they created the will.
You may be able to dispute a will if you think the deceased did not understand:
- The nature and effect of the will;
- The size of their estate; and/or
- The claims of the beneficiaries
If you believe the deceased was being taken advantage of or controlled by someone at the time of making their will, and that the deceased was being influenced to create or re-write their will to benefit that person, the will may be able to be disputed. It can be difficult to prove undue influence, however the Court will take into account a variety of factors and evidence in these types of cases.
If you think the deceased was duped into signing a will, you may be able to challenge that will on the basis of fraud. In these cases, the misleading party may have falsely represented that the deceased was signing another document, or concealed material facts about the will itself.
If you believe you have been deprived of your share in a deceased’s estate due to any of the above circumstances, contact us today to discuss your legal options.

Powers of Attorney & Advanced Health Directives

While your will takes effect after your death what happens if you are no longer able to manage your own affairs during your lifetime or if you need someone to manage your affairs while you are overseas? An Enduring Power of Attorney or General Power of Attorney allows you to appoint someone to make financial and personal and/or health decisions on your behalf in these circumstances.

If you become incapacitated and you do not have an Enduring Power of Attorney in place, your loved ones will be put to the expense and emotional distress of needing to make application to the Queensland Civil and Administrative Tribunal to be appointed as your guardian or power of attorney.

- For elderly people or those with a particular health issue, an Advanced Health Care Directive should be considered in conjunction with your General Practitioner. An Advanced Health Directive directs your medical practitioner in regards to your medical treatment in the event that you are unable to make decisions for yourself.
- Estate planning: in both simple and complex circumstances;
- Wealth protection: through testamentary, private and bloodline trusts;
- General, Enduring or business Powers of Attorney: advice and preparation;
- Advanced Health Care Directives advice.

Estate Administration

Properly administering a deceased person's estate can be a complex and confusing task. Carswell & Company Solicitors can assist you throughout this process. Whether you are a beneficiary under the will or the appointed executor of the estate, we can help you understand your rights and obligations.

The role of an Executor or Administrator in a deceased estate includes: applying for probate of the will, verifying the estate assets and liabilities, ensuring bequests under a will are properly carried out and that the payment of all estate debts is completed.

On your behalf, our team can prepare all the necessary court documents and contact various institutions that may be holding estate assets. We are able to liaise with all levels of government and provide advice that may be required in relation to disputed wills.

- Our estate lawyers can assist with the following:
- General advice on the administration of a deceased estate;
- Obtaining Probate or Letters of Administration;
- Family Provision Applications (“FPA”s) or construction of Wills;
- Liaison with estate creditors, accountants and other tax advisors and estate beneficiaries.

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