Q: Why is a will so important?

A: A will is important as it provides you with peace of mind because it gives you the means to decide whom you wish to benefit from your estate and to what degree.

Q: What if I don’t have a will?

A: If you don’t have a will, the rules of intestacy will apply. This means that your estate will be distributed according to the requirement set out in the legislation which covers the situation where a person dies without a will.

Q: What is the benefit of a will when I hardly have any assets?

A: Even though you believe your estate may be small circumstance may arise in an unexpected way. You may be the beneficiary of an unexpected inheritance or you may win the Golden Casket or the Pools, or a Mater or Endeavour Home. Having a will may also save expense for your estate when you die.

Q: What if all the assets are in the joint names of myself and my partner?

A: If all your assets are in the joint names of yourself and your partner, the “Law of Survivorship” applies and the survivor is entitled so far as those joint assets are concerned. However, you might end up being the survivor in this situation. You should also remember that in your own sole name you may have a windfall. If you want those assets in your name at the time of your death to be distributed in accordance with your wishes then you should have a will in place.

Q: When do the provisions of a will become effective?

A: The provisions of a will become effective from the date of death.



Q: What effect does marriage have on a will?

A: Marriage revokes a will, unless the will states that it has been made in contemplation of marriage to your spouse.

Q: What if I get divorced after I have made a will?

A: Divorce will void a disposition to your spouse in the will and will have other effects such as revocation of an appointment of your spouse as an executor.

Q: Why should I not just do up a will myself?

A: Unless you have appropriate legal experience it is unwise to do a home made will, because it is important to ensure that the terms of the will are clear, and it is important to avoid the risk of problems arising in the administration of an estate. It is best to ensure that the terms of your will are professionally drafted by an experienced solicitor and that the will is correctly executed. You should also have the opportunity to discuss with an experienced professional in the appropriate field particular ways in which you wish to distribute your estate. How the will is drafted will make a significant difference when it comes to tax liability imposed on a particular beneficiary. There may be a myriad of other problems arising in dealing with an estate. It is best to obtain professional assistance if you are to make an informed decision as to distribution of your hard earned assets.

Q: What if I lose capacity to handle my affairs but am still alive?

A: You need to have thought about that possibility whilst you still have a clear mind, and you need to have in place an Enduring Power of Attorney. In this way, the person, or persons you appoint as your attorneys will be able to look after your personal and health needs and handle your financial matters for you. Whether you are an 18 year old or a 75 year old you do not know what the future holds. You may possibly meet with an accident at some stage or receive major medical treatment and lose your capacity such that you need the assistance of a trusted person to look after your needs. Most people prefer to have the choice to nominate whom they would like to handle their affairs in these circumstances. You do not have to be old in order to make an Enduring Power of Attorney.

Q: What happens if I lose my capacity and do not have an Enduring Power of Attorney?

A: If you lose your capacity and do not have an Enduring Power of Attorney then the Public Trustee may handle your affairs for you. Costs may be payable in connection with such service.

Q: When does an Enduring Power of Attorney come to an end?

A: An Enduring Power of Attorney comes to an end upon the death of the person who has made the Enduring Power of Attorney or upon revocation of the Enduring Power of Attorney during the life of the person.

Q: Do I really need an Enduring Power of Attorney? Surely my partner will look after my affairs if I lose capacity to do so.

A: If you lose capacity to handle your affairs then unless your partner has been appointed your attorney under an Enduring Power of Attorney it is then no one has the power to manage your affairs and it is possible that the Public Trustee will step in and manage your affairs

Q: Does an Enduring Power of Attorney cover making decisions on behalf of a person such as donation of body tissue?

A: No you need a document called an Advance Health Directive.

Q: What is an Advance Health Directive?

A: An Advance Health Directive is a document under S35 of the Powers of Attorney Act 1998, by which an adult gives directions about health matters and special health matters, information about those directions, appoints one or more persons who are eligible attorney/s to exercise power regarding such directions and provides terms on which the power may be exercised. For example a special health matter which requires an Advance Health Directive is whether an adult wants to state circumstances in which a life sustaining measure is to be withheld or withdrawn.

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