We can help you by:

• preparing a Will that protects your hard-earned assets whilst maximising your family’s inheritance;
• preparing and explaining the benefits of having an enduring power of attorney and enduring guardianship documents;
• advising you so you can choose suitable executors, attorneys, and guardians;
• advising you regarding family and testamentary trusts to help safeguard assets and protect vulnerable beneficiaries;
• minimising the potential for your Will to be contested and subject to litigation;
• safely storing your Will and other important legal documents on your behalf.

What is a Will?

A Will is a written legal document that states your wishes regarding what happens to your property and assets (your ‘estate’) after your death. It gives instructions for the person distributing your property (your ‘executor’) about how this is to happen.

A Will can also contain provisions regarding how the deceased person’s remains are to be dealt with and appoint guardians for any children under 18 years old or vulnerable beneficiaries.

The do-it-yourself trend and the internet have made writing your own Will seem like an easy way to get your affairs in order. But it really isn’t as simple as it seems, and there is no substitute for proper advice from a qualified lawyer no matter how straightforward you think your affairs are.

What appears to be a cost-effective solution can be financially and emotionally draining for those you leave behind should a “homemade” or “do-it-yourself” Will be invalid because it was not correctly signed and witnessed, or because it does not document your real intentions.

Having a lawyer prepare your Will and advise you on estate planning is a small price to pay to protect your wealth and ensure your wishes are carried out after you die.

Probate and estate administration

Being the executor of a Will comes with a great deal of responsibility and involves a range of tasks. We can advise you of your legal rights and duties, apply for a Grant of Probate or Letters of Administration, if necessary, and assist with the administration of the estate.

Probate refers to the Grant, or orders, made by the Supreme Court of Victoria for the distribution of your assets in accordance with your Will. Probate is usually granted to the executor who then gathers all the estate assets and distributes them in accordance with your wishes. Letters of Administration is required where a person dies without a Will and an estate requires administration. A Grant of Probate or Letters of Administration may not be necessary in all circumstances, and we can advise you regarding this.

Challenging the validity of a Will

For a Will to be valid it must be in writing and signed by the testator on each page in front of at least two witnesses. The Will should be dated at the time of signing. If a person making a Will does not freely and voluntarily make the Will or have the requisite testamentary capacity with the intention to make a Will, it may be invalid.

You may be able to challenge a Will if you believe there is a forgery or if the testator lacked mental capacity to make it. A Will may also be challenged on the basis that undue influence was used on the deceased, if there was fraud involved, or if the Will contains obvious errors or mistakes.

Family Provision Claims

If you think you should have been included in a loved one’s Will or your inheritance was less than you deserved, you may be eligible to make a claim for family provision. The Administration and Probate Act 1958 states that the following people are eligible to make a claim:

• current spouse or domestic partners of the deceased
• children, step-children, and those treated as a natural child of the deceased
• former spouses or domestic partners of the deceased in certain circumstances
• a registered caring partner of the deceased
• grandchildren of the deceased
• in some circumstances, a spouse of a child of the deceased

In determining whether to make a Family Provision Order, the Court will consider a number of factors as outlined in the Act. These include, but not limited to:

• the deceased’s Will, or other evidence of a deceased’s intentions, including reasons why they have not been included, or not provided further for a person bringing a claim;
• the relationship between the deceased and the person bringing the claim;
• any obligations or responsibilities of the deceased to the person bringing the claim, any other person who could bring a claim and the beneficiaries of the estate;
• the size of the estate and any liabilities of the estate.

Many family provision claims can be settled out of court, and our experienced team will do all that they can to negotiate a fair settlement.

Effective estate planning can save hours of heartache for you, your friends and your family and minimise the potential for costly legal battles. Disputes can arise simply because no direction has been given regarding the management of your estate when you die, or how your affairs should be handled if you are incapacitated. Our experienced lawyers can assist with all aspects of your estate planning and provide advice and guidance with the complex and emotional process of administering or challenging a deceased estate.