Wills and Estates

Wallbanks Legal can provide expert advice and respresentation across these increasingly complex and important legal practice areas:
  • Probate & Administration
  • Wills
  • Enduring Power of Attorney
  • Guardianship Appointment
  • Disputed Wills & Estates
  • Estate & Succession Planning
  • Elder Law

PROBATE & ADMINISTRATION
On a day to day basis we assist our clients as appointed executors to promptly obtain Grants of Probate and Letters of Administration and to lawfully administer and distribute estates in good time. We pride ouselves with being able to do so efficiently in terms of both time and cost.

WILLS
A well considered and professionally drafted will is the basis of relational and intergenerational family care and an essential act in creating an admirable legacy.

Where once it may have been an option to use a will kit to save money or to leave it up to the Intestacy laws to determine how your property was to be distributed on your death, most people have witnessed the huge emotional hurt and financial cost involved to family and loved ones when a person's will turns out to have been badly or carelessly drafted.  In many cases, a "free will"  or no will is not free at all - and it is your family and loved ones who pay the price.

These are just  a few of the reasons our clients to seek our expert advice for their wills:

  • The inconvenience, remoteness, lack of personal flexibility and significant extra costs associated with having institutional or corporate executors or trustees.
  • More people are living in extended and non-traditional families and experiencing more than one relationship and family during their lives.
  • The desire to insulate your children's and grandchildren's share of your estate from their own possible future relationship issues.
  • More people are living with complex financial circumstances while the tax regime is also becoming more complex. No one wants to see a part of their estate needlessly lost to taxes and duties.
  • Testamentary Trusts are being increasingly used for legitimate tax minimisation for beneficiaries, asset protection and in some cases as a means of preventing assets being wasted by beneficiaries who have difficulty managing their lives and/or financial affairs.
  • The Succession Act 2006 and Family Provision laws create a large class of people who are entitled to challenge the validity of your will or seek to have the Court alter its terms in their favour. How easily such a challenge is undertaken depends on how well your will is drafted. This is particularly important in circumstances such as where you have had to provide one child with a lot of financial assistance during your life and wish to make up for that imbalance by leaving a greater share of your estate to another child on your death

ENDURING POWER OF ATTORNEY
The somewhat shocking fact is that in the absence of having an Enduring Power of Attorney, the control of your financial affairs will be taken out of the hands of your trusted loved ones and handed over at significant cost to a corporate or institutional trustee during your life if illness or accident cause you to lose the capacity to manage your own affairs. No one should be without an Enduring Power of Attorney and an Enduring Guardianship Appointment.

GUARDIANSHIP APPOINTMENT
We increasingly want a say in how we are to be treated, where we will live, whether we are hospitalised or cared for at home for any long periods of illness we may suffer and what medical treatment we receive in the event of experiencing a terminal illness.  It is a surprise to many of us that if we are not well enough at the time, such decisions can be made by health care providers and institutions rather than by our trusted loved ones. It is only through having an Enduring Guardianship Appointment that we can legally appoint and empower trusted loved ones to give instructions to institutions and health care providers in our stead when we cannot and make sure our wishes as to the medical treatment we receive and how we receive it will be honoured and carried out. No one should do a will without doing an Enduring Power of Attorney and a Guardianship Appointment.

DISPUTED WILLS & ESTATES
Wills can be challenged on a number of grounds including:
  • Lack of testamentary capacity where there is sufficient lay and/or expert evidence to prove that the testator did not possess sufficient will-making understanding of his or her own affairs, obligations and/or the purpose of the will at the time the will was made. 
  • Undue Influence where a testator creates terms in a will as a result of actual coercion.
  • Fraud where the testator is deceived or fraudulently induced to make a will in a certain way.
  • Forgery where it is claimed that the testator’s signature on the will was forged. 
  • Contract when an agreement exists binding the testator to leave a specific gift in the will.
  • Lack of knowledge and approval where there is sufficient lay and/or expert evidence to prove that the testator signed the will without really understanding or being aware of its contents and effect.
  • Trust a constructive trust based upon the testator’s representation.
  • Family Provision In certain circumstances a specific class of persons described in the Succession Act 2006 NSW can make a claim for fresh or additional provision from an estate despite the terms of the will. This class of persons is surprisingly wide and includes:
             - Spouse
             - Former spouse
             - De facto spouse
             - Child of the deceased
             - Child of a de facto relationship to which the deceased was a party at the time of death
             - Grandchild who was at any time wholly or partially dependent upon the deceased
             - A person who was at any time wholly or partially dependent upon the deceased and was at any time a member of the same
               household as the deceased
             - Any person who was in a close personal relationship with the deceased at the time of death.

Please call (02) 49844911 or email to wallbanks@wallbanks.com for an obligation free discussion about any of these legal matters.