Wills

We Help...

  • Ensure that on your death your assets are distributed as you wish.
  • Ensure that your will is valid and is updated as your circumstances change.
  • Protect your estate.

We Understand...

  • You have worked hard to provide for your family and loved ones.
  • You and your family need peace of mind that adequate provision is made for those left behind.
  • When your circumstances change your will needs to keep up.

Speak to a Lawyer call 03 9890 332103 9890 3321

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We Do...

Making or updating your will

Frequently Asked Questions

WHAT IS A WILL?

A will is a legal document which sets out how you want your assets to be distributed when you die.

DO I NEED A WILL?

Undoubtedly, you will have worked very hard during your lifetime to provide for your family and loved ones. Having a valid will is the only means by which you can ensure your family, friends and loved ones are properly provided for upon your death.

CAN I MAKE A WILL?

Any person over the age of 18 who has the mental capacity to understand what they are doing can make a will. In limited circumstances, a court can approve a will made by someone under the age of 18. Where a person does not have the mental capacity to make their own will, a court can approve specific wills made on their behalf.

WHAT IF I DON’T HAVE A WILL?

If you do not leave a valid will when you die, you are said to die “intestate” and your assets will be distributed in accordance with legislation. There are a number of disadvantages to this, such as:

  • You will have no control over the distribution of your estate;
  • Family members, friends and loved ones who you intended to
    benefit from your estate may receive nothing;
  • There is no power to appoint a guardian for minor children; and
  • Your estate may be administered by someone you would not have
    appointed.

The absence of a valid will can make what is already a challenging time for those closest to you more difficult than it needs to be.

HOW DO I KNOW IF MY WILL IS VALID?

For a will to be valid, you must satisfy the following criteria:

  • You must be over the age of 18;
  • The will must be in writing (either handwritten or typed);
  • The will must be signed by you and witnessed by two witnesses;
  • At the time of signing the will, you must have testamentary capacity, which means you understand the effect of the will, you are aware of the extent of your assets, and you are aware of the people who might expect to benefit from your will.

Our lawyers can help you determine whether your will is valid, and importantly, whether it needs to be updated.

WHY SHOULD I UPDATE MY WILL?

As your personal and financial circumstances change, you should take the opportunity to review and revise your will. We recommend that you revisit your will at least every five years or when a significant personal events such as the birth of a child, a relationship breakdown, or the death of a family member takes place.

Even if you choose not to revise your will, certain personal events and changes, such as marriage or divorce, may affect your will without your knowledge and your will could even be rendered invalid.

We can assist you to review your current will and ensure it affords you and your family adequate protection and security.

I HAVE A POWER OF ATTORNEY, DO I NEED A WILL?

A power of attorney is a legal document which gives a person power to act on your behalf while you are alive, but this power will cease upon your death. Your will then comes into effect and the executor appointed under your will manages your estate.

CAN SOMEONE CONTEST MY WILL?

Having a will drawn by a lawyer is the best protection you can buy your estate against potential challenges and claims. However, a will can be contested if it is alleged:

  • That the will was incorrectly executed or tampered with;
  • That the will was executed under pressure from others;
  • That the will maker was incapable of making a will;
  • That the meaning of the will is unclear.

In addition, a person can make an application to the Supreme Court for a share (or an increased share) in an estate if they can show that the deceased had a responsibility to make adequate provision for their maintenance and support in their will and has failed to do so.

Contesting a will can be a complicated and difficult process, and strict timelines apply. If you are concerned about a challenge to your will, or alternatively, wish to challenge someone else’s will, our team of estate and disputes lawyers can guide you through the process.

HOW CAN A LAWYER HELP ME?

Our role as your lawyer is to provide you with independent professional advice on how best to structure your will to ensure that your estate is properly managed and distributed.

We will work with you to gain an understanding of your personal and financial circumstances in order to make sure that adequate provision is made for those left behind. Having one of our lawyers assist you in preparing or revising your will to suit your individual needs will afford both you and your family peace of mind.


Powers of attorney

Frequently Asked Questions

WHAT IS A POWER OF ATTORNEY?

A power of attorney is a written legal document which allows another person to act and make decisions on your behalf. The types of decisions that person can make will depend on the type of power given by you.

DO I NEED A POWER OF ATTORNEY?

It is recommended that everyone over the age of 18 considers making powers of attorney. They are an invaluable tool in managing and controlling your affairs, both financial and non-financial, on an ongoing basis.

Our lawyers can guide you through the process of determining which powers are right for you, and who you ought to appoint to these important roles.

WHAT ARE THE DIFFERENT TYPES OF POWER OF ATTORNEY?

There are four types of Powers of Attorney in Victoria:

  • General Power of Attorney;
  • Enduring Power of Attorney (Financial);
  • Enduring Power of Attorney (Medical Treatment); and
  • Enduring Power of Guardianship.

A person giving a power of attorney is called a ‘donor’. The person appointed by the power is called either an ‘attorney’, an ‘agent’ in the case of medical treatment, or a ‘guardian’.

GENERAL POWER OF ATTORNEY

A general power of attorney authorises a person to act on your behalf. The scope of this authority and the duration of its effect will depend on the terms of the power as determined by you.

For example, you could grant a general power of attorney to permit someone to sell your house for a specific amount, or act on your behalf while you are overseas or in hospital.

A general power of attorney can specify when and in what circumstances it will operate, and when it will end (such as upon the sale of a property, or a specific date). You can also end a general power of attorney at any time by revoking it.

A general power of attorney will cease effect immediately if:

  • The donor dies;
  • The donor becomes bankrupt; or
  • The donor loses capacity to run his or her affairs.

ENDURING POWER OF ATTORNEY (FINANCIAL)

An enduring power of attorney (financial) authorises a person to make financial and legal decisions on your behalf. Unlike a general power of attorney, an enduring power of attorney will not cease if you subsequently lose capacity to manage your affairs.

ENDURING POWER OF ATTORNEY (MEDICAL TREATMENT)

An enduring power of attorney (medical treatment) authorises a person to make decisions about your medical treatment on your behalf in the event that you cannot make these decisions for yourself.

Your agent can consent to medical treatment on your behalf, but can only refuse treatment if:

  • The treatment would cause you unreasonable distress;
  • Your agent reasonably believes that you would consider the treatment unwarranted.

They cannot consent to any treatment which would remove tissue for transplant, lead to infertility, or terminate a pregnancy without the express consent of the Victorian Civil and Administrative Tribunal’s Guardianship List.

ENDURING POWER OF GUARDIANSHIP

An enduring power of guardianship authorises one guardian (and one alternate guardian) to make personal and lifestyle decisions on your behalf if you lose capacity to make these decisions for yourself.

These decisions can include where you live and who you live with, as well as general health care matters (if you do not hold an enduring power of attorney (medical treatment)).

You can limit the decisions your guardian can make on your behalf as you see fit.

CAN I REVOKE MY POWER OF ATTORNEY?

You can revoke a Power of Attorney at any time while you have the capacity to do so by signing a simple revocation form.

WHAT IF THERE IS A DISPUTE?

The Victorian Civil and Administrative Tribunal (VCAT) has the power to make decisions relating to powers of attorney, including suspending, varying or revoking them. Our team of lawyers can help you to resolve the dispute as quickly and cost effectively as possible.


Probate

The death of a loved one can be a difficult and emotional time and the administration of an estate can seem overwhelming. Our team of Wills and Estate lawyers will help to guide you through the process of administering an estate as quickly and easily as possible.

Frequently Asked Questions

I AM AN EXECUTOR OF AN ESTATE. WHAT IS MY ROLE?

When you make a will, you appoint an executor. The role of the executor is to manage and administer the estate after your death. An estate will include all assets held by a person including houses, land, cars, money, shares, and personal items but usually exclude any superannuation.

The executor’s role is extensive but includes:

  • Attending to funeral arrangements;
  • Notifying any financial institutions or other relevant organisations of
    the person’s death;
  • Ascertaining the size of the estate and taking control of all assets;
  • Obtaining a Grant of Probate or Letters of Administration if required;
  • Resolving all estate disputes and attending to payment of all
    liabilities;
  • Distributing assets to the beneficiaries; and
  • Investing or managing assets to be held on behalf of beneficiaries.

WHAT IS A GRANT OF PROBATE?

When a person dies leaving a will, the executor may be required to obtain a Grant of Probate from the Supreme Court of Victoria. A Grant of Probate is a court order confirming the validity of the will and will allow the executor to administer the estate.

If a person does not leave a will, or the will does not appoint an executor, an application can be made to the Supreme Court of Victoria for Letters of Administration. This is a similar court order which will allow the applicant to administer the estate.

Making application to the Supreme Court for either a Grant of Probate or Letters of Administration can be confusing and difficult without proper advice and support. Our lawyers can guide you through the process, ensuring your application is correct and processed as quickly as possible.

DO I NEED A GRANT OF PROBATE?

Whether or not you will be required to obtain a Grant of Probate (or Letters of Administration) will depend on the assets of the deceased; what type of asset they were, their value and how they were owned. Assets usually fall into the following categories:

  • Real property;
  • Bank accounts;
  • Shares;
  • Aged care bonds or deposits;
  • Cars;
  • Personal items.

The assets may be owned jointly with another person or in the deceased’s sole name. Assets which were owned jointly with another person who is still alive may be able to be transferred to that person without the need for a Grant of Probate (or Letters of Administration).

Our lawyers will help you determine whether a Grant of Probate (or Letters of Administration) are necessary for your estate.

HOW DO I APPLY FOR A GRANT OF PROBATE OR LETTERS OF ADMINISTRATION?

Although the procedure for obtaining a Grant of Probate (or Letters of Administration) of a will is relatively straightforward, most people will choose to have a lawyer assist them in their application. Currently, 95% of all probate applications processed by the Supreme Court are made by lawyers or trustee companies on behalf of executors.

In order to prepare their application, the executor must first ascertain what the assets and liabilities of the estate are.

Once this information has been obtained, the executor must advertise their intention to apply on the Supreme Court Probate Online Advertising System. After a period of 14 days, the executor must then file their application at the office of the Registrar of Probates. The application includes five separate court documents, which must be in the form prescribed by the Supreme Court.

The application is then reviewed by a Registrar of Probates and, if approved, the Grant of Probate or Letters of Administration will be issued by the Court.

HOW LONG WILL IT TAKE TO FINALISE THE ESTATE?

Each estate is unique and the time from death to a final distribution to beneficiaries varies accordingly. The main variables in determining how long an estate will take to finalise are:

  • The size of the estate and the types of assets and liabilities held by
    the deceased;
  • Whether a Grant of Probate or Letters of Administration is necessary and if so, the time taken by the Supreme Court to process the probate application;
  • How quickly the assets can be realised and transferred;
  • Whether or not there is a dispute.

Our lawyers can provide you with a realistic timeframe within which you can expect your estate to be administered.

WHAT IF THERE IS A DISPUTE?

Despite best intentions, disputes often arise within estates. The dispute may be between executors, or may be a challenge to the will by a beneficiary. In the event of a dispute, it is essential that all parties seek legal advice, so that the dispute can be resolved as quickly and cost effectively as possible. Disputes can often be resolved by the parties without the need for court proceedings.

HOW DO I CONTEST A WILL?

A will can be contested or challenged if it is alleged:

  • That the will was incorrectly executed or tampered with;
  • That the will was executed under pressure from others;
  • That the will maker was incapable of making a will;
  • That the meaning of the will is unclear.

In addition, a person can make an application to the Supreme Court for a share (or an increased share) in an estate if they can show that the deceased had a responsibility to make adequate provision for their maintenance and support in their will and has failed to do so.

These types of cases can be complex and difficult and so it is important that you seek legal advice as early as possible. If you wish to contest someone’s will, or are concerned that someone may contest your will or the will of someone else, our team of estate and litigation lawyers can provide you with clear and concise advice.


Disputing a will


Testator's Family Maintenance

Unfairly left out of a will?

If you believe that a person who has died had a responsibility to look after you in their will there is the potential to challenge it. A will can be contested if it is alleged:

  • That the will was incorrectly executed or tampered with;
  • That the will was executed under pressure from others;
  • That the will maker was incapable of making a will;
  • That the meaning of the will is unclear.

In addition, a person can make an application to the Supreme Court for a share (or an increased share) in an estate if they can show that the deceased had a responsibility to make adequate provision for their maintenance and support in their will and has failed to do so.

Contesting a will can be a complicated and difficult process, and strict timelines apply.


Guardianship


Seniors issues


Our Wills & Estates Team

Andy Shaw

Accredited Specialist - Business Law

Emma Stansfield

Wills & Estates

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We can help

Our team of lawyers provide expert advice, with most holding Law Institute of Victoria Specialist Accreditation in the areas of Family Law, Personal Injury Law and/or Commercial Litigation.

  • All initial consultations are obligation free.
  • At Robinson Gill Lawyers you speak to a lawyer.
  • Call us to help you 03 9890 332103 9890 3321 or 1800 745 3421800 745 342.
  • Fax us 03 9898 426603 9898 4266.
  • Send us an enquiry.
  • In two convenient locations:
    701 Station Street, Box Hill (Head Office)
    Level 40/140 William Street, Melbourne
Speak to a Lawyer call
03 9890 332103 9890 3321
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