Good estate planning will ensure your assets go to the people that you want to benefit when you die. A large part of good estate planning is having a valid and up-to-date Will. It is also a good idea to have documents in place to direct what will happen to you and to your assets when you lose your legal capacity due to an unexpected injury, disability or illness.

Updating your Will

You should revisit your Will every 3 to 5 years to make sure that it still gives effect to your wishes. There are some circumstances in which your Will might be automatically revoked or invalidated, in which case you will need to prepare a new one.

Changing circumstances

Some examples of when you should review your current Will:

  • your financial circumstances have changed;
  • your family circumstances have changed, for example, if you marry, start a new relationship, divorce, separate, or have children or grandchildren;
  • a beneficiary, executor or trustee appointed under your current Will has died;
  • an executor or trustee appointed under your current Will became unsuitable to act due to age, bankruptcy or ill-health;
  • you sold or gave away assets that are specifically mentioned in your current Will;
  • you bought or inherited significant assets;
  • you begin to hold assets that your Will cannot deal with, such as in superannuation or a trust; or)
  • the entities or structures you hold assets in have changed.
  • Events that revoke or invalidate your Will

    When you marry or when you divorce a spouse that you were married to at the time of signing your Will, you will need to prepare a brand new Will, as both of the above events automatically revoke or invalidate your current Will.

    If however, you are planning to be wed in the near future or are currently engaged in a divorce suit, you can still make a valid Will in contemplation of the marriage or divorce, which will not need to be re-written when the later event occurs.

    What happens to your property when you lose your legal capacity?

    Legal capacity is a legal term describing your ability or power under law to enter into contracts (e.g. leasing a property), administer your money in the bank (e.g. drawing and transferring money), make property decisions (selling or buying a property) and to sue and be sued in your own name.

    Legal capacity is lost when you are found to be incapable of making decisions due to mental incapacity as a result of an injury (e.g. motor vehicle injury), disability or sudden illness (e.g. dementia or Parkinson's disease).

    When you lose your legal capacity, you lose your competence to make any decision associated with your assets. All your rights to deal with your assets are stripped from you and you are left with no recourse to intervene.

    What is an Enduring Powers of Attorney (EPA)?

    An EPA is a legal document which, in some ways, operates in the same way as a Will. It enables you to appoint a person (or persons) to determine what should happen with your assets while you are still alive, whereas a Will only operates after you have died.

    The appointed person(s) can manage your money in the bank, buy and sell properties in your name – everything you would have been able to do was it not for your legal incapacity.

    You may choose whoever you feel you can trust to look after your affairs (your spouse or partner, another family member, trusted friend, accountant or lawyer).

    You determine when your EPA should come into effect – immediately (which is useful for when you are out of the jurisdiction) or only after you lose your legal capacity.

    What is an Enduring Powers of Guardianship (EPG)?

    An Enduring Power of Guardianship (EPG) is a legal document which enables you to appoint a person of your choice to make personal and lifestyle decisions on your behalf when you lose your legal capacity. This person becomes your enduring guardian.

    An Enduring Power of Guardianship would come into effect only if you are no longer able to make reasonable judgements about your personal or lifestyle matters.

    You can appoint a sole enduring guardian (one person) or joint enduring guardians (more than one person). It is important to note however, that joint enduring guardians must always make decisions together and agree on any decision they make. You can also appoint a substitute enduring guardian to act in certain circumstances, for example if your enduring guardian is not available.

    How do I review my Will or draw up an EPA and EPG?

    You are welcome to make an appointment to see one of our lawyers for a free of charge appointment to review your current Will. You may also send us your updates to your Will via mail or email. We will quote you a fixed fee to make the amendments before we commence with any work.