MELBOURNE’S ANSWER TO CONTESTED WILLS AND PROBATE LAWYERS
Ensuring your affairs are in order for your loved ones is of the utmost importance. It may well save issues down the track. Our specialist lawyer services in Melbourne include:
- Powers of Attorney
- Supportive Attorney
- Probate and Administration of Estates
- Will Challenges/Contested Wills
Estate planning is crucial for every person irrespective of how small their estate may be. Oldham Naidoo Lawyers provides a full range of Will and estate planning and administration services. We can assist you to secure your future and those of your intended beneficiaries.
If you’re after more information about how we can help you secure your future, please speak to Renishka Naidoo-Weisse via email or by calling (03) 9640 0002.
The importance of Wills
Making a Will is an important part of planning for the future of your family.
If you die without a Will your estate will be dealt with in accordance with statutory rules that determine how your money and possessions should be divided. It is important to have a valid and up-to-date Will, whether your estate is large or small. It’ll spare your family from unexpected legal bills and the heartache of trying to determine what you would have wanted. By having this important documentation drafted by an estate lawyer you can avoid the risk of it being invalid or otherwise open to be contested.
Oldham Naidoo Lawyers can help you to prepare and execute your Will to ensure that it is valid (not contested), and that your estate is distributed to the beneficiaries you have named.
For further information about how we can help you with this, get in touch with Renishka Naidoo-Weisse at Oldham Naidoo Lawyers via email or by calling (03) 9640 0002.
Powers of Attorney
A power of attorney is a document authorising another person, the attorney, to execute documents or make decisions on another person’s behalf (the principal).
There are 4 types of powers of attorney:
- General non-enduring powers of attorney (previously called a general power of attorney)
- Enduring powers of attorney – personal (previously called an enduring guardianship power)
- Enduring powers of attorney – financial
- Enduring power of attorney – medical treatment
General Power of Attorney
This type is ordinarily used if a person is travelling overseas or requires someone to handle their day to day financial affairs in their absence. For example, an attorney may be appointed to make decisions on your behalf, including:
- buying or selling property for you;
- accessing your bank account;
- paying your everyday expenses;
- paying your taxes and your mortgage payments; and
- making investment decisions for you.
It only operates in situations where the person still has full legal capacity. If the person loses mental capacity, for example through illness, accident or loss of consciousness, it’ll no longer be active.
Enduring Power of Attorney – financial and/or personal
An enduring power of attorney will allow a person to arrange management of their financial and/or personal affairs.
It is designed for circumstances where there is some concern that a person’s mental capacity will or may deteriorate and will have full force and effect even though the person may subsequently become incapable. It is important that the document is signed by a person whilst they are legally capable.
The following are examples of financial matters:
- buying or selling property for you ;
- accessing your bank account
- paying your everyday expenses;
- carrying on any trade or business;
- making investment decisions for you.
The following are examples of personal matters:
- where and with whom the person is to live;
- persons with whom you may associate;
- whether the person should be permitted to work, and if so, the kind and place of work and employer;
- daily living issues such as diet and dress
- whether the person undertakes education or training, the kind of education or training and the place where it takes place
- health care matters, including matters provided for in Part 4A of the Guardianship and Administration Act 1986.
The enduring power of attorney also provides for greater flexibility by the person in deciding how and when they want their attorney to act, regulates an attorney’s ability to give gifts from the person’s property and to enter into conflict transactions.
If you would like more information about how we can help you prepare powers of attorney, please contact Renishka Naidoo-Weisse via email or by calling (03) 9640 0002.
Enduring Power of Attorney (Medical Treatment)
An enduring power of attorney (financial or personal) does not authorise an attorney to make a decision about the medical treatment of the donor. Instead, the Medical Treatment Act 1988 (Vic) permits a donor to appoint an agent to make a decision about the medical treatment of the donor if the agent is appointed in accordance with the legislation.
An enduring power of attorney (Medical Treatment) only comes into effect when the donor becomes incompetent. It is limited to a decision about the continued medical treatment of a person after he or she has become incapable of making such a decision, permanently, such as through dementia or an acquired brain injury or, temporarily, such as if the donor is unconscious as a result of an accident or illness.
The Powers of Attorney Act 2014 (Vic) came into effect on 1 September 2015 and introduces the supportive attorney appointment. It allows a principal to appoint a person (‘a supportive attorney’) to provide support to make or give effect to some or all of the principal’s decisions. The appointment is available to anyone who has decision-making capacity but needs support to exercise that capacity.
As opposed to the general or enduring powers of attorney mentioned above where the attorney makes decisions on behalf of the principal, a supportive attorney will not make decisions on behalf of the principal. A decision made with the support of a supportive attorney or communicated by or with the support of a supportive attorney will be a decision of the principal.
A principal may authorise a supportive attorney to access, collect or obtain information; to communicate, or assist the principal to communicate supported decisions; or to do anything that is reasonably necessary to give effect to supported decisions (other than decisions about significant financial transactions).
This appointment will not detract from informal relationships where those are sufficient. Many day-to-day decisions will continue to be made with and without informal assistance.
Looking for more information regarding how our lawyers can help you prepare powers of attorney, be sure to contact Renishka Naidoo-Weisse in Melbourne via email or by calling (03) 9640 0002.
Probate and estate administration
After a person dies many of their assets are temporarily inaccessible and before they can be accessed, Court authority may be necessary. Where there is a Will, the necessary court order is known as a grant of probate. The person who is authorised to deal with the deceased’s estate, if there is a will, is called an Executor. If there is no will, the appropriate order is known as a grant of letters of administration and the person who administers the estate is called an Administrator.
There are various administrative tasks that need to be attended to when a person dies. If you have never acted as an Executor or Administrator before you might find the responsibility overwhelming. Oldham Naidoo Lawyers can assist you to attend to these tasks. Our experienced team can:
- give you detailed information about your responsibilities
- advise you whether you need to apply for a grant of probate or letters of administration
- prepare the necessary documents and make the application
- help you identify and collect assets
- advise you about the order in which debts must be paid off, including any tax liability of the estate
- establish any necessary trusts
- assist you to distribute money to the beneficiaries
- assist you with the necessary paperwork and accounting requirements
Will Challenges/Contested Wills
There are two different types of Will challenges:
- You can contest the validity of a Will if you believe that one or more of the following applies:
- the deceased did not have the necessary capacity to make it. e.g., if the deceased suffered from dementia at the time of signing the document;
- the deceased was unduly influenced in making the Will;
- the deceased did not know or approve of the contents of the Will;
- the deceased did not sign it;
- the deceased revoked the Will, or made a later valid Will;
- the Will was not executed properly, or was tampered with after execution.
- Alternatively, and more commonly, 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’s Family Maintenance Claim under the Administration and Probate Act 1958 (Vic).
The law recognises a person’s right to choose who inherits his or her property. However, there are often very good reasons why a will should be challenged. If you have not been provided for in a deceased’s will or believe it is invalid for any of the reasons stated above, Oldham Naidoo Lawyers may be able to assist you to challenge it.
If you are considering a challenge to a deceased’s will, Oldham Naidoo Lawyers can assist you to assess the relevant issues and advise you on the legal options available to you. We understand the importance of maintaining friendships and family ties and our aim is to resolve disputes without court intervention where possible. This has the added benefit of minimising costs and delays associated with protracted litigation.
If you’re after further information about contesting a Will in Melbourne or probate matters, please contact Renishka Naidoo-Weisse via email or by calling (03) 9640 0002.