Wills and Estates

A Will is one of the most important legal documents a person can make in their lifetime. A Will dictates how your estate will be administered upon your death.

However, if you do not make a Will in your lifetime, you will die intestate and you assets will be distributed by the Succession Act. Friends and Charities do not receive property under the intestacy rules.

Jurisdictional issues arise as different Australian jurisdictions have separate laws and precedents.

Who may make a Will?

Any person who is over the age of 18, as long as they have a sound mind, memory and understanding. However, a person under the age of 18 who contemplates marriage, or is married, may make a Will.

How does Marriage or Divorce affect my Will's validity?

A marriage may automatically revoke a Will unless the Will was made in contemplation of the marriage.

A divorce will automatically revoke any provision in a Will that mentions your former spouse one exception however is where your former spouse was appointed as the trustee of your property left by you (the testator) on trust for beneficiaries that include your former spouse's children.

What about if I am in a de facto relationship?

The entering of a civil relationship has the same effect as marriage AND the ending of a civil relationship has the same effect of divorce.

Who will look after my children?

You can appoint people you trust to be the guardians of your children upon your passing.

A Will should be updated when:

  • You get married or divorced
  • You separate from your de facto partner
  • You have children or grandchildren
  • The executor or beneficiary of your estate dies (unless you have appointed more than one executor or beneficiary)
  • Your financial position changes considerably

Powers of Attorney

Both a General Power of Attorney and Enduring Power of Attorney are dictated by the Powers of Attorney Act. Both documents are important as they confer a lot of power to your attorney/s while you are alive in relation to your financial and/or personal/health matters.

What is the difference between a General Power of Attorney and Enduring Power of Attorney?

A General Power of Attorney authorises one or more person to do all things on your behalf which you lawfully allow them to do in relation to your financial matters. You are known as the Principal and the person or persons you appoint, are known as your attorney/s. Once the principal has lost capacity, so too has the attorney/s.

An Enduring Power of Attorney however allows an attorney/s to act in relation to your financial and personal/health matters.
Where a person appoints the same attorneys for their financial and personal/health matters, a Short Form Enduring Power of Attorney document is used.
Where a person appoints different attorney/s, a Long Form Enduring Power of Attorney document is used.

Unlike a General Power of Attorney, once a principal has lost capacity, the attorney/s power is not revoked.

General Power of Attorney and Enduring Power of Attorney documents are important documents and you should only appoint people you trust. Your attorney/s are given a lot of power and it is essential you are sure they will not abuse that power!

How we can help

At Clarity Family Law Solutions, we are experienced in estate planning and are able to provide you with this advice in just one consultation so you can feel confident about how you need to document your will. If you are going through a difficult separation, we are able to provide on-going advice and representation for negotiations, mediations and court appearances. We are here to make the process as simple and as stress-free as possible to help you move on with your life.

Contact us for more information or for a free no obligation legal advice session.

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155 Varsity Parade,
Varsity Lakes, QLD, 4227

Postal: PO Box 4449,
Robina Town Centre, QLD, 4230

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