WILLS AND ESTATES LAWYER SERVICES

The importance of a valid Will

If you pass away without leaving a valid will in place, the intestacy provisions set out in the Succession Act 1981 (Qld) can automatically apply to your estate. If you or your spouse die intestate and without an adequate estate plan then the succession of your estate assets may pass to people whom you do not necessarily wish to benefit – simply by the automatic operation of ‘one size fits all’ statutory procedures and mandated formulas, often producing inequitable, impractical or unintended results for those left behind.

In addition, statutory provisions may operate conversely in an intestacy, meaning that the people whom you do wish to benefit from your estate may completely miss out. This kind of ad hoc approach to estates can often cause the loved ones left behind a great deal of confusion, hurt and unnecessary delay at times when families are still very much in the process of grieving.

Inequitable outcomes produced by intestacies also increase the risk of legal action commencing between the parties. This can be extremely costly for estates. Preparing a valid will with one of our wills and estates lawyers is the best way to ensure you are aware of all your testamentary options including:

Who you want to look after your estate and act as your executor;
What items and assets you can leave in your will and to who and when;
Payment of debts or liabilities;
Whether different types of testamentary trusts may be appropriate;
Guardianship of children;
Ongoing care and support of pets; and
Whether you wish to be cremated or buried.

There are other good reasons you should make your will with a will lawyer, including that contemporaneous records of your wishes will be kept, the original will can be independently kept safe and secure, and people cannot tamper with the document without your knowledge. A will made with a solicitor is also not as easily challenged as a home.

In order to be considered valid, a will must comply with statute and formal legal requirements including:

the general requirement that a will is in writing;
the requirement that the person making the will knows and approves of its contents;
contents of the will are known to and have been approved have been read and approved by and confirmed by the testator or testatrix (the person making the will) prior to having them
is confirmed and is signed by the person making the will in the presence of two independent and competent witnesses who do not stand to benefit under the will (either directly or indirectly);
Be made by a person with testamentary capacity who knows and approves of the contents of the will:
Deal with property and appoint executors; and
Not have been revoked prior to death.

A will can be updated, changed or revoked by you and your will lawyer at any time unless a contract has been entered into to make the will unable to be changed. Our Brisbane family law firm can assist by giving clear explanations of legal terms and of the steps involved in finalising an estate.

Our wills and estates lawyers help by charging at a reasonable rate, not on commission, and by giving an estimate of costs at the start.

Our lawyers help by being available when you need us.

A will speaks for you when you are not able to speak for yourself. It is very important to have a carefully considered and professionally drawn will which seeks to ensure that your loved ones are not left with frustrating legal problems or lengthy complications or delays at an already difficult time in their lives.

If you need a simple and straightforward will and if your financial and family situations are entirely uncomplicated, then our lawyers for wills are able to provide a fixed fee quote for our wills and enduring powers of attorney package, including advanced health directives for both couples and individuals.

If your family matters are more complex, or where there may be blended families or additional asset protection or taxation concerns, we work closely with clients to recommend the best estate planning strategies for you and your loved ones.

In these situations, our wills and family lawyers provide an obligation free estimate of our costs in provide tailored and bespoke estate planning solutions focused on achieving practical and well considered outcomes for your beneficiaries.

Having a simple, straightforward valid will is highly desirable, however your particular family and broader financial circumstances may call for much more delicate and careful expertise in drafting a comprehensive estate plan which addresses the needs of vulnerable or at risk beneficiaries and achieving those additional goals and putting into place the wishes relating to the ones you love most.

We provide individual and practical advice to serve you best.
We have extensive experience in estate litigation and can advise how best to protect your family and reduce the risk of claims against the estate.
We can work with your financial advisor and accountant to prepare an estate plan based on the most complete advice.
We make sure control of entities such as trusts and self-managed superannuation funds passes to the right people.
We also understand the importance of having Enduring Powers of Attorney and Advanced Health Care Directives in a comprehensive succession plan.
We listen to you and work with you to ensure your wishes are honoured.

The importance of having enduring powers of attorney

What happens if you are mentally incapacitated (either temporarily or permanently) and cannot make decisions for yourself?

If you have made an Enduring Power of Attorney and an Advance Care Directive, the people named in those documents are authorised to make decisions on your behalf, subject to the conditions or terms provided for in those documents.

If you haven’t made an Enduring Power of Attorney and you are no longer able to manage your financial or health decisions or if you are held by medical experts to lack the capacity required to attend to our own affairs, then a situation can develop where there is no party duly appointed to manage your affairs and the Public Trustee of Queensland often applies to the Guardianship Tribunal / QCAT for orders seeking the day to day control of the decision making powers of that person.

This can deplete estate funds unnecessarily and can also often causing hurt, frustration and confusion for the family members who are ultimately deprived in the long run in having any real practical say in important and often critical decisions involving a loved one who is later lacking capacity and left without an attorney.

An Enduring Power of Attorney relates to financial and legal matters and health and lifestyle matters.

If you are making a Power of Attorney, you must consider who you want to make decisions on your behalf in relation to financial and legal matters, including operating your bank accounts and investments and who ought to act for you in health/lifestyle and minor medical matters.

It is often a good idea to name more than one attorney, so there is a “back-up” or substitute if the first attorney appointed is not able to act in that role.

Of course it is important that all of the people appointed as attorneys are trustworthy, and understand the limits of their role and what they can and cannot lawfully do. For example, attorneys cannot deal with your money as if it were their own and must act in your best interests at all times when making decisions which affect you.

Attorneys are not able to give your money away, even if they think you would want them to, unless you give them a specific authority to provide gifts or provide a similar direction or specific condition in the Enduring Power of Attorney that is of special importance to you.

Our Brisbane family law firm is always ready to advise attorneys on their duties and responsibilities. We can give your attorney the support they need to know they are doing the right thing.

The importance of having Advanced Health Care Directives

An Advance Care Directive relates to specialist medical advice and making future decisions about one’s future health care, including decision which may relate to end of life matters and a valid and binding Advanced Health Care Directive must be completed in conjunction with your medical practitioner or specialist.

Accordingly, it makes sense to have both document solutions in place to cover all of the range of practical or other delicate decisions which might need to be made in the future, bringing peace of mind to clients and the ones they love and trust the most.

Even though many people expect they will only need these documents later in life, it is important to put them in place early to be sure they are there when you need them. It can be extremely traumatic for families and loved ones when a solicitor cannot prepare one or both of these documents because a person has already lost legal capacity.

As well as appointing people to make decisions about medical matters if you are not able to make those decisions yourself, an Advance Care Directive allows you to state clearly what treatments you do or do not want to receive in certain circumstances.

Making a decision to refuse treatment for a loved one is one of the most difficult decisions a person or children can have to make, and this can often create deep conflicts between family members when arguing about your proposed wishes intentions.

Having an Advance Care Directive in place can make that difficult decision a great deal easier for the people you leave behind and can relieve loved ones of unnecessary burdens altogether.

Our Brisbane solicitors can draft the document so one person is authorised to make decisions, and then another person or people are authorised if the first person is not able to make decisions or in such a way as to provide for joint or cascading appointments.

Grant of Probate and Letters of administration services

Our family law firm regularly acts for various executor, trustee, beneficiary and applicant stakeholders in the administration of both simple and complex deceased estates. Our wills and estates lawyers have over 10 years’ experience in guiding our clients through the process of administering a deceased estate from start to finish.

Our will lawyers have acted for clients all over Australia in both solemn and common form probate applications, reseals, applications seeking a grant of letters of administration, contested and lost wills, assisting with intestacies and facilitating the statutory or testamentary distribution of estate assets.

Our will and estates solicitors advise on estate and real property caveats, trust disputes and often act in the negotiation and preparation of deeds of family arrangement where families reach agreement on the final distribution of estate funds

Our family lawyers the resolution of minor estate disputes and family provision applications and advising on larger more complex litigation matters, involving succession, trust, commercial and/or equitable disputes and applications for relief in the equitable jurisdiction.

Our lawyers regularly act in both simple and complex estate matters in areas such as:

providing urgent advice on funeral and estate expenses following someone’s sudden passing;
assisting clients in the search for lost and missing wills or probate of a copy
whether a grant of probate or application for reseal is required or recommended for each estate (usually depending on where the majority of assets are held or where a person is domiciled)
Assisting in the preparation of applications for probate or letters of administration;
assisting trustees in calling in and keeping trust property safe;
calling in of estate funds held by banks and other financial institutions;
advising and assisting with on claims for life insurance or other insurance policies;
advising on claims for payment of assets held by superannuation funds;
dealing with share registries’ and the sale and transfer of estate shares and securities
liaison with the Australian Securities and Investments Commission;
advising and assisting in the sale of commercial businesses and SME’s
the refund of aged care residential accommodation deposits and bonds;
assisting in the sale and transfer of real property, specific gifts, charitable bequests;
assisting SME’s and family trusts with commercial succession or sale of assets;
advising on revenue, taxation and stamp duty issues which may arise ;
facilitating the valuation, transfer and/or the sale of business interests, real properties or other assets (where required to pay debts or other legacies or liabilities);
providing for the efficient succession and transfer of estate and business assets in strict accordance with the terms of a person’s will.
Advising families on intestacies (where someone does not have a will);
A-Z administration services (including the payment of all estate debts) and facilitating the lawful transfer of trust property, gifts and assets to beneficiaries;
Calling in of all trust property
Assisting and advising in insolvent estates and dealing with estate creditors
Ensuring that executors and trustees act lawfully in the discharge of their duties
Providing beneficiaries with advice on taxation matters and asset protection
Dealing with legacies to minors
Advising on private international law and estate assets held in other jurisdictions
Protecting assets from possible creditors and taxation where possible
Litigation (contesting a will)

Probate

A Grant of Probate is an order made by the Supreme Court. It confirms that a Will is the valid last Will of a person who has died, and that the person or people named in the Grant are authorised to deal with the estate of the deceased person.

You do not always need a Grant of Probate to take care of a person’s estate. We can advise you whether a Grant is needed, and, in some situations, we can try and negotiate with banks and other organisations to waive the need for a Grant where funds may be close to the threshold amount required by banks.

Applying for a Grant requires the completion of several legal documents in specific forms. It is not technically necessary to instruct a lawyer to prepare those documents, but many people benefit from doing so and benefit from the peace of mind that comes in knowing we can attend to the majority of matters on your behalf and with a minimum of fuss.

When there is no will

A person who dies without a valid will is said to have died “intestate”.

The law sets out who is authorised to administer an intestate estate, and how the estate is to be divided. It is different in each situation, depending on which family members have survived the deceased person.

To administer an intestate estate, a person must obtain a Grant of Letters of Administration, which is similar to a Grant of Probate. Treloar & Treloar can help with such an application.

What about…?

Sometimes a person leaves a document which is not a valid will, but which contains their plans for what should happen after they die. A document like that might be recognised by a Court as a will, and we can advise you on that.

Sometimes a person gets divorced, but dies before updating their will. The will might say the divorced spouse is to benefit, but the law says differently.

If you think a person’s last will might not be valid, contact Seraphus Solicitors Brisbane.

DISPUTED WILLS & CONTESTED ESTATES

Can someone challenge or contest a Will where they have been left out?

Wills may be challenged by interested parties on various grounds when someone passes away.

In Queensland, such formal challenges to wills generally take two distinct categories –challenges to the validity of a will on various grounds or challenges to the terms of a will.

Challenging the validity of a will

The first is challenging the validity of a Will where there is verifiable and credible evidence to support various arguments that the will was not properly authorised by the will maker or evidence which supports the conclusion that the will maker did not know and approve the contents of the will prior to signing it.

Wills may also be set aside or read down by a court if a matter proceeds all the way to trial in matters where it is found that adequate provision has not been made for an eligible person within the meaning given in Part IV of the Succession Act 1981 (Qld).

Wills may also be read down or gifts to beneficiaries may be altered or wills or certain provisions may also be held to be invalid by courts in situations where there is material and credible evidence to support allegations of undue influence, deception, fraud, mistake.

Wills can also be challenged on many other grounds involving some other form of duress or inequitable dealing or a failure to keep records evidencing that the person making the will knew and approved of its contents before signing it and confirmation that the person making the will had the requisite capacity to understand the nature and effects of the solemn power that a will maker must exercise when disposing of his estate.

A will might be declared invalid in certain circumstances for a number of different reasons, which could include:

evidence that the person making the will did not have the mental capacity to understand the effect of what he or she was doing;
evidence that the person making the will did not know and approve the contents of the Will or intend to confirm it;
undue influence or pressure was exerted upon the will maker so that the will represents someone else’s wishes;
the will was procured by fraud or false representations;
the signature was forged.

Challenging the terms of a Will

The second type of common challenge to a will is best simply described as challenging the terms of a Will which is an action which may be brought pursuant to the relevant statutory provisions provided in Part IV of the Succession Act 1981 (Qld).

Family provision applications

At our family law firm, we regularly handle cases where eligible persons apply for further provision. We assist parties in resolving these matters in a timely and practical manner, as they relate to individual rights. In particular, we have extensive experience in efficiently resolving Family Provision Applications in Queensland. It’s worth noting that similar applications in other Australian States and Territories may be referred to as Further Provision Applications.

An ‘eligible person’ within the meaning given by Succession Act 1981 (Qld) refers to categories which are limited to include spouses, de facto spouses, children of the deceased and, in some circumstances, grandchildren and stepchildren of the deceased.

In contested Will claims, the Court considers a wide variety of matters and applies various tests in assessing what provision ought to have been made (if any) for those who have been excluded from benefiting from an estate.

An applicant must show that he or she is in financial need, but simply having a mortgage or dependants is often enough to satisfy that step. Some people may also have to show they were supported by and depended on the deceased person during his or her lifetime to establish grounds for a family provision application.

One of our Will dispute lawyers would be pleased to provide you with advice as to a potential claim that you may have or assist you in defending a claim.

The strength and weaknesses of various Family Provision Applications

Our will dispute lawyers understand what must be proved in relation to both of these areas and we have experience and up to date knowledge of the various thresholds which apply in each factual matrix.

Our wills and estate lawyers also understand that every situation is different. We take the time and care to understand your story, and to achieve the best outcome for you.

Sometimes that involves reaching a negotiated settlement which avoids the costs and inconveniences of a trial and may also include vigorously defending a challenge and pushing ahead to realise your full entitlement as a beneficiary.

Our law firm in Brisbane regularly advises and represents people who wish to challenge or contest a will on the basis of various equitable, statutory and/or common law doctrines and regularly act for various parties in applications for further provision made under the provisions of Part IV of the Succession Act 1981 (Qld).

We provide clients with sound and practical advice in relation to their prospects in successfully proving or defending an application for further provision and we often act in resolving settling various estate and trust disputes by way of a Deed of Family Arrangement or court orders.

Efficient, practical and cost-effective outcomes

At Seraphus Solicitors, we appreciate the commercial and common-sense benefits we are able to provide to our clients in quickly evaluating the strength of family provision applications and er are well versed in providing up to date advice and various solutions resolving dispute further delay or inconvenience.

This allows the people involved to move forward with their lives and facilitates the administration of the estate. We can work with you to negotiate a settlement, where possible.

We also act for staunch executors and trustees who are determined to uphold and defend the provisions set out in a person’s Last Will and Testament.

Strict time limits apply

If you wish to contest a will, it is extremely important that you are aware that time is of the essence.

It is vital that you seek independent legal advice as early as possible to avoid losing any statutory right you may have relating to challenging a person’s will.

Strict time limits will apply in all jurisdictions and any delay or failure to act by you in notifying a deceased estate that you wish to bring an application or any failure to bring an action after the expiry of certain time limits may result in the loss of an opportunity or legal right to pursue an action.

If you have any doubts about where you may stand in estate matters then call us to discuss what is on your mind.

ELDER LAW

From abuses of power to abuses involving misuse of Powers of Attorney or trust property we act in matters involving vulnerable or at-risk beneficiaries and agreements relating to the lega complexities of retirement village licences and granny-flat agreements.

Many Australians now face new challenges and often require some sensible and practical sdvice so that they can know where they stand.

Sometimes you need someone to go in to bat for you or someone to help you find your voice. We’re here to help with whatever you may face.

Discrete advice in Elder law matters

We advise on all contracts, such as licences to occupy and life estates and act in matters involving lifestyle village or granny-flat agreements, so you can make an informed decision with peace of mind. If you are having second thoughts about something you signed, we can advise on your cooling-off rights or how to terminate the contract.

We can also advise attorneys and administrators, who must know the limits of their authority and the principles they must uphold. All too often we hear of well-meaning professionals or family members giving advice which results in a breach of duty and legal liability. With a little advice, attorneys and administrators can act with confidence knowing they are doing the right thing.

Action

If you feel your rights to make your own decisions are under threat, we may be able to help you, whether by negotiating with others involved or by representing you in Court or before QCAT.

If you are worried an attorney or administrator is abusing the authority and trust placed in them by an elderly or vulnerable person then please contact us immediately.

Because of our knowledge in matters relating to aged care, agency, residential accommodation deposits and private equity, we are well-placed to help you.

RECENT EXPERIENCE HIGHLIGHTS

Representing the (grandson) beneficiary in adverse negotiations with the Executors and Trustees of his late Grandmother’s estate, to secure the transfer of a large investment property located in Coffs Harbour to the grandson absolutely. The matter resolved without court proceedings.

Acting for the (son) sole beneficiary of an intestacy, pursuant to the Queensland Succession Act to ensure Letters of Administration were granted correctly and the beneficiary received the full value of his entitlement under the law.

Various bespoke wills and testamentary trust arrangements for high-net-worth clients, usually combined with succession planning, structuring and general succession law advice.

Customer Reviews

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WILLS AND ESTATES LAWYER SERVICES

The importance of a valid Will

The importance of having enduring powers of attorney

The importance of having Advanced Health Care Directives

Grant of Probate and Letters of administration services

Probate

When there is no will

What about…?

DISPUTED WILLS & CONTESTED ESTATES

Can someone challenge or contest a Will where they have been left out?

Challenging the validity of a will

Challenging the terms of a Will

Family provision applications

The strength and weaknesses of various Family Provision Applications

Efficient, practical and cost-effective outcomes

Strict time limits apply

ELDER LAW

Discrete advice in Elder law matters

Action

RECENT EXPERIENCE HIGHLIGHTS

Customer Reviews

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