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Abuses of Power of Attorney

What is a Power of Attorney

A power of attorney is a document which allows you as the “principal” to appoint somebody (referred to as your attorney) who can step in and make financial decisions for you should you become incapacitated. Your appointed attorney has the authority to access your bank accounts, pay bills on your behalf and buy and sell property for you. A power of attorney document is an essential document to consider and most clients will put a power of attorney in place when they are also doing their new will or updating their will documents.

If you do not have a power of attorney document in place and you subsequently do lose capacity then your family members will be stuck with not being able to manage your financial affairs and having to make an application to the Guardianship Division of the NSW Civil & Administrative Tribunal to seek an appointment of a financial manager on your behalf.
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Promises to leave a bequest from an estate

If a promise is made to leave a bequest to you in a Will, but you are left out, there is a chance that the law will make good on that promise.

In a recent case neighbours agreed to alter their lifestyle, delay renovations to their house and provide support to their elderly neighbour as she promised to leave them her house in her Will.

However, she did not make good on her promise in her Will. The neighbours were able to obtain the house from the estate as they had acted to their detriment in a number of ways and upheld their side of the promise. The Court held it would have been unjust for the neighbours not to receive the house.

Not every case will provide this same result. The circumstances were quite particular.

The case does underline the importance of taking care when expressing testamentary intentions.

It is crucial that proper legal advice be obtained if unfortunate and expensive litigation is to be avoided. Please contact one of our Will Lawyers on 9635 7966 if you have any questions relating to the preparation or update of a Will or if you have a Will dispute.

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Evidence of a Will maker’s intentions

How far do you go to record evidence of a Will maker’s intentions

Generally, recordings of conversations without the consent or knowledge of a person is highly contentious when it is put to a Court of law to prove a Will maker’s intentions.

However, there are particular circumstances where such recordings may be admissible. If there was a legitimate purpose, the recording was important to protect fabricating conversations, where there were no other practical means of recording a conversation, and where there is likely to be a serious dispute between the parties, a Court may admit a recording as evidence.

If these criteria are met, however, the Courts exercise caution as to the accuracy of a recording capturing the Will maker’s true intent. Elderly parents are more likely to act more benevolently in a conversation. A secret recording may also be considered unfair and be to the detriment of the recorder.

If you have questions or concerns about any issue to do with preparation or update of a Will, please contact one of our Will Lawyers on 9635 7966

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Wills & Estate Planning for Blended Families

Blended families create special problems. Children of past marriages need to be considered and their interests protected, without it impacting on the needs of a current spouse or partner. The changing demographic of families in this modem age means the problems surrounding blended families are now more acute than ever.

Problem Areas

  • Will makers forget how assets are held – without intending it, assets can automatically pass to a joint owner or nominated beneficiary, and not form part of the estate of the deceased person, thus frustrating any will provision intended to deal with that asset.
  • Providing for a surviving spouse or partner, where the will maker “trusts” that person to look after the children of all relationships, not just that survivor’s own children. It is a dangerous approach, and one almost certain to create conflict between the children of the deceased and the beneficiary.
  • Failure to recognise that natural children may only have one chance of making an estate claim, forcing the issue even where there is an excellent relationship between the surviving spouse and those children.

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Terms used in a Will

WILLS –DOES THE TERM “GRANDCHILDREN’ INCLUDE “STEP-GRANDCHILDREN”?

Identifying whether the expressions step children and step-grandchildren are included in the expressions children and grandchildren can cause confusion in Wills .

When all else fails, Courts try to determine expressions in the Will according to the intention of the deceased. Courts may in some cases look into family relationships and their closeness in order to determine the meaning of an expression such as “child”.  In a recent case where there was an intention in the Will for step-grandchildren to be beneficiaries, it was decided that the definition of “grandchild” could be extended to “step-grandchild.”

If there was no clear intention, it will be assumed that nothing was intended other than the ordinary meaning of the word. However it may be that in today’s society, Courts are more amenable to extending “child “to step-child” and so on.

This  will not necessarily apply in all cases.

In the meantime, some points to consider
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Claims against an Estate

THE NEED FOR DISCLOSURE WHEN THERE ARE CLAIMS AGAINST AN ESTATE

A person is entitled to leave his or her estate to whoever they choose. However, there may be circumstances in which a person has been left out of a Will who believes they should have been included.  This is because “eligible persons” can apply for a family provision claim against an estate. In simple terms, “eligible persons” include spouses, de-facto partners, children (including adult children), and grandchildren or members of the household who were dependent on the deceased.

For the Court to be able to determine how to decide the claim, it will look at all facts presented by tperson making the claim. Amongst many other factors, the Court will consider the relationship between the claimant and deceased person, the financial resources of the claimant, the age of the applicant and any provision made for the claimant by the deceased person.

The claimant and all other parties must ensure that they fully disclose information. There must be complete disclosure of assets, liabilities, financial resources and sources of income with documentary evidence. The Courts take a dim view of any lack of honesty.
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DOES MARRIAGE AFFECT YOUR WILL?

DOES MARRIAGE INCLUDING SAME-SEX MARRIAGE AFFECT YOUR WILL?

Marriage can result in a Will or parts of it being automatically revoked.

If a person marries after making a Will, it  will be revoked with exceptions including:

·       gifts in the Will from a person to a spouse who they marry are not revoked;
·       an appointment as executor or whom the testator is married to at the time of his or her death is not revoked.

Same-sex marriage in Australia has been allowed since 9 December 2017. The same laws apply in relation to Wills of same-sex couples. A same-sex marriage may make a past Will invalid subject to the exceptions mentioned above.

Considering the difficulties which arise in relation to marriage and Wills, we advise that you make your Will in contemplation of marriage to avoid any issues. Importantly, a Will made in contemplation of a particular marriage is not revoked by that marriage.

If you have been newly married, or you were married before the same-sex laws we can advise you on how to deal with enquiries you may have about the validity of your Will.
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A Will Lawyer’s Advice relating to Capacity to make a Will

A Will Lawyer’s Advice relating to Capacity to make a Will

Can a person without capacity have a will made for them?

If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.

What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?

Consider the following scenario. A person has made a will which leaves all their assets to their spouse. If a few years later this person permanently separates from their spouse and forgets to change their will and some time later they become mentally impaired, they will no longer have the capacity to alter their will. If this person were to die, their previous spouse would receive all their assets. No assets would be given to the person’s children or other important people that the person would have intended to have mentioned in their will if they had the capacity to change it.
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