THE MAKING OF A WILL & ENDURING POWER OF ATTORNEY: FORMALITIES AND IMPORTANCE

Significance of a Will

A Will serves as a legal mechanism directing how your property is to be disbursed following your death. It also affords you an opportunity to appoint a person(s) to administer your estate to ensure that your wishes are respected, following your passing.

There are various reasons why you should ensure that you have a valid Will in place, namely: –

• assists your nominated executors to understand how you wish for your affairs to be managed;
• identities who you wish to benefit from your estate;
• minimises potential conflict amongst beneficiaries, by clearing setting out your wishes; and
• assists in ensuring that your estate is administered with ease and without unnecessary delay.

Ultimately, having a valid Will serves to prevent your family from suffering undue stress or hardship, as it prevents you from passing away ‘intestate’, or without a Will. In such circumstances, the rules of intestacy apply insofar as the administration and distribution of your estate, and these rules may be contrary to your own personal wishes.

Will Requirements

There are several formalities which must be adhered to when preparing and executing a Will. These formalities serve to: –

• limit cases of fraud and undue influence; and
• encourage authors to afford due weigh and consideration to what will happen to their property, following their death.

A will must be: –

• in writing;
• duly executed by the Willmaker;
• witnessed by two (2) independent witnesses; and
• dated.

A Willmaker must also possess testamentary capacity when the Will is signed.

Notably, there are various types of assets that cannot be distributed under the terms of your Will and these types of assets are sometimes referred to as ‘non-estate assets’. Some of these non-estate assets include: –

Significance of an Enduring Power of Attorney & Requirements

Somewhat similarly to a Will, an Enduring Power of Attorney (‘EPOA’) affords you an opportunity to appoint a trusted person(s) to make personal, health and/or financial decisions on your behalf, in circumstances where you are unable to, usually due to a loss of capacity.

This loss of capacity may be as a result of an accident, medical condition, or mental illness. Having a valid EPOA serves to somewhat preserve your control over your decision making throughout your lifetime, with the document enduring throughout the course of your incapacity.

Much like your Will, it is imperative that your EPOA is duly executed, to ensure its validity. The Enduring Power of Attorney Explanatory Guide – Form 9 is a Queensland Government publication which features helpful information incidental not only to the completion, but execution of an EPOA.

Importance of Reviewing Your Estate Planning Documents Regularly

We recommend that you attend to a review of your estate planning documents every twelve (12) months to ensure that your documents accurately reflect your wishes.

There are a number of significant life events that can affect your estate planning in the future, these include: –

• If you separate or become estranged from a spouse (including a marital partner or civil partner);
• if you separate from a de facto partner (including same sex);
• if you enter into a de facto relationship (including same sex);
• if you divorce, marry, or commence or terminate a civil partnership;
• if you have a child then this does not have the effect of revoking your Will; and/or
• if a beneficiary mentioned in your Will dies and there are no succeeding beneficiaries referred to in your Will. 

If any of these life events occur, it will be necessary for you to have your estate plan reviewed and potentially make a new Will and Enduring Power of Attorney to ensure that your wishes are carried into effect.

Getting Your Affairs in Order

If you do not have a Will or Enduring Power of Attorney, or simply wish to revisit your estate planning arrangements, please contact Natasha Hughes of our office.