Services

Wills, Powers of Attorney & Enduring Guardianship

Making a Will

Of all the reasons for contacting a Solicitor, doing a Will is the most common.

Most Wills can be done within a few days and the cost is amazingly cheap when compared to the additional costs and disappointments for your surviving Family if you leave them without any Will.

The most regular questions I have been asked are:

I made my Will many years ago, is it still valid?
What happens if the Executor I appoint dies before I do?
I love my children equally, so should I appoint them all as my Executors?
One of my children has not seen or spoken to me for years, must I still include her/him in my Will as a Beneficiary?
My friend was talking about having a Discretionary Trust in the Will. What are they and do I need one?
I would like some kind of protective trust for one of my Family who is disabled.
Where is the best place to store my Will?

I can help you write a new Will that shall answer all of your questions and give you peace of mind.

Powers of Attorney

While often mentioned when talking about Wills, many people do not know why they also need a Power of Attorney.

A common idea is that a Power of Attorney is a document for “older people”. Well, yes, but they are also needed by anyone who has either a bank account or superannuation or any property.

The totally unexpected does happen (consider COVID-19) and if you are stuck overseas or if you are seriously ill you have the comfort of knowing that your Attorney can sign papers on your behalf.

Most commonly these days, people make an Enduring Power of Attorney which continues to be effective if you lose mental capacity.

A Power of Attorney can be limited to, say, signing a particular contract or operating a nominated bank account up to a set limit. However, mostly they are not limited and enable your Attorney to make decisions respecting all of your real estate and all other property and your bank accounts. So only appoint someone you trust 100% both, for their honesty and for their ability.

As with your new Will and your Appointment of Enduring Guardian, I can help you have the peace of mind that comes with also signing an Enduring Power of Attorney.

Appointment of Enduring Guardian

Given our increasing life expectancy coupled with the lessening, in many cases, of our mental capacity over the years, an Appointment of an Enduring Guardian can be just as important as signing a Power of Attorney. As with Powers of Attorney, it is sometimes thought of as being relevant only for older clients. However, an Enduring Guardian is also an essential protection in case of an accident/illness causing brain injury at any age.

In addition to specifying the functions of where to live and what kind of medical and personal services to receive, I also recommend, for my client’s consideration or modification, three more specific directions than appear in the basic precedent form, prescribed under the Guardianship Act:

Unless it is for the relief of pain or for my comfort, I do not wish to have any Elective Surgery.
If a Specialist Surgeon, Physician or Geriatrician should conclude that there is no reasonable prospect of my eventual recovery to a meaningful degree of independent existence, then I do not wish for my life to be unduly prolonged by means of life support systems.
If a person with at least five years’ experience in the field of caring for elderly people should conclude it is no longer safe for me to live in my own home (whether or not with a family member) then I accept that it will then be appropriate for me to live in aged care facility.

As with your new Will and your Enduring Power of Attorney I can help you have the peace of mind that comes with also signing an Appointment of Enduring Guardian.

Contact me at [email protected] or call me on 02 9871-1011 for a free preliminary consultation.

Deceased Estates & Estate Disputes

Helping Executors handle a Deceased Estate

The executor is the key appointment in any will. If two or more are appointed they must act unanimously. After arranging the funeral, the executor’s next duty is to locate the assets and liabilites and to check that all assets are insured and in safe hands. Next is to open an estate bank account, to be operated only by the executor.

Is it necessary to get Probate and what is involved?

If there is any real estate in the deceased’s sole name, or an aged care accomodation bond, or any bank account exceeding $50,000, it is essential to apply for a grant of probate. After examination of all accompaning material, the Supreme Court grants probate of the will lodged with the court and any later will is inoperative.

The application for probate should be lodged within 6 months of the date of death.

After the grant of probate the executor must pay all liabilites promptly, but should not make any distribution until after 6 months from the date of death.

If an executor gets even a hint of a possible Family Provision Claim against the Estate, advise me immediatey and do not distribute anything. Further, the share of any bankrupt beneficiary must not be distributed, but must be paid instead to the trustee in bankruptcy.

If no will can be found, a parallel procedure enables a relative to be appointed as an administrator of the estate with duties and powers similar to an executor.

I can help you to have the peace of mind that comes with the proper administration of a deceased estate.

Disputing an “inadequate” Will

Under NSW law all Testators have the privilege of choosing who is to be a beneficiary and how much each is to receive. The Courts do not have authority to simply re-write a Testator’s will because a relative thinks that the will is unfair or does not provide equally amongst beneficiaries.

There is however, one limitation on the Testator’s privilege, and that is a requirement that a Testator is to make adequate provision for the proper maintenance, education and advancement in life of a group amongst his close family who are called eligible persons.

Your circumstances may or may not entitle you to make a successful Application. Every case is decided on its own facts, depending on the size and nature of the Estate, the terms of the will and the needs of the eligible person contesting the will, which are all looked at in the light of provisions for other beneficiaries.

So how will you know if you will be successful in making an Application? Simply put, you are not expected to know. If you are an eligible person and if, from your non-legal perspective you feel, that the will makes inadequate provision for your proper needs, contact me.

There are two groups of eligible persons.

The first group comprise the Testator’s spouse; de facto at the date of death; or any children. Each person in these three categories is automatically entitled to bring an Application for a Family Provision Order, if she/he can then establish inadequate provision.

The second group comprise four categories: a former spouse (but not a former de facto); a person at the date of death who was living in a close personal relationship with the deceased; or either of the following, who at any time was dependent upon the deceased, namely, (i) a grandchild or (ii) a member of the deceased’s household.

Any person in this second group has to also establish that there are factors which warrant the making of the Application, as well as establishing inadequate provision.

There is a strict time limit of 12 months from the date of death to the date of actually filing your Application in the Court Office. So, make sure you contact me at least two or three months prior to that 12 month deadline, as it takes some time to get an Application ready.

I can help you have the peace of mind that comes with receiving sound advice when exploring the merits of a possible family provision claim.

Contact me at [email protected] or call me on 02 9871-1011 for a free preliminary consultation.

Conveyancing & Property Law

When purchasing residential property, buyers should know exactly what they are buying and receive clear title to the property. Due diligence involves a series of investigations to ensure there are no adverse affectations, the implications of easements or other restrictions are explained, and that structures comply with local planning regulations.

Sellers of residential property must have a written contract containing disclosure documents (title search, plan, drainage diagram and zoning certificate) before marketing the property and warrant that, unless disclosed in the contract, there are no adverse affectations concerning the land and that structures are compliant.

Most people rely on a loan from a bank or building society to finance a property purchase. A mortgage is granted by the borrower to the lender and registered on the property’s title. The mortgage secures the repayment of the money loaned and the loan contract gives the lender the right to sell the property if the borrower defaults.

Commercial and retail leases govern the relationship between a landlord and tenant regarding a tenant’s right to occupy premises owned by the landlord. Retail leases are regulated by state legislation. Lease disputes often arise because of poorly drafted, ambiguous or non-existent lease agreements, or the failure of the parties to understand their obligations.

Conveyancing and property law can be complex – a property transfer or the granting of a mortgage is often the largest financial transaction a person makes. Obtaining legal advice can help minimise the risks and potential pitfalls that can occur during a property transaction.

I can help you have the peace of mind that comes with having your conveyancing matter proceed to settlement properly.

Contact me at [email protected] or call me on 02 9871-1011 for a free preliminary consultation.

Retirement Living

A retirement village is a community-style development offering low-maintenance accommodation with ancillary services and facilities to retirees, typically aged over 55 years.

There are various ways to ‘buy-in’ to a retirement village – not all result in property ownership in the traditional sense. Many are loan-licence or leasing arrangements with the relationship between village operators and residents governed by a legal agreement setting out the terms and conditions for occupation, use of common facilities and the types of services included. The fee structure including ongoing contributions towards management and maintenance, and the exit provisions should be clearly provided.

Retirement villages in New South Wales must be registered and village operators must provide prospective residents with a disclosure statement before entering into a contract.

If you are considering retirement living, we recommend that you:

Shop around for a retirement village that offers the accommodation and services you need given your age, health status and how long you are likely to spend in the village.
Obtain a disclosure statement from the village operator setting out the fees, amenities, services, etc.
Ensure that you are aware of your financial commitment and can afford all fees. Meeting with a financial advisor may assist in planning and structuring your financial arrangements to meet your obligations.
Scrutinise the facilities – while these should meet your requirements and recreational needs, there is no point paying for the upkeep of golf courses and tennis courts if you do not enjoy these activities.
Involve your family in decision-making and obtain legal advice before signing anything.

Entering into a retirement village can be a long-term decision and residents should ensure they understand their rights and obligations under the contract.

I can help you have the peace of mind that comes with having your move into a Retirement Village proceed smoothly.

Contact me at [email protected] or call me on 02 9871-1011 for a free preliminary consultation.