Wills & Estates

What is a Will and why do I need one?

A Will is a legal document that determines how your estate will be distributed after you die. Your Will also appoints an executor, being the person who has the responsibility to finalise your estate according to your wishes and ensures compliance with all legal requirements.

Having a Will means that when you die, your assets can be distributed efficiently and effectively to the people that you care about. If this is important to you, and you’re over the age of 18, then yes, you absolutely need a will.

Hall Payne can help you draft a Will, so your wishes are carried out.

We are experienced in succession planning and Wills and Estate matters and can also assist you as your circumstances change over time.

We can help prepare, complete and execute Wills, Enduring Powers of Attorney and Advance Health Directives (also referred to in other states as Advance Care Directives and Advance Personal Plans).

Do I need to review my Will once I’ve done it?

If your assets, your circumstances or your relationships change, your Will may no longer be appropriate or valid. To make sure your Will continues to reflect your wishes, we recommend reviewing it every two years.

If something major happens in your life, you should immediately review your Will. A significant event could include:

• Births
• Deaths
• Marriage or the commencement of a new relationship
• Separation, divorce or some other relationship breakdown
• Retirement
• Changes in your personal or business assets.

If you marry, any Will prior to that marriage may become invalid

It’s important to note that in the case of marriage, any Will you have prior to marriage may become invalid upon your marriage. We strongly suggest that you contact Hall Payne prior to your marriage to arrange to update your Will.

What if I die without a Will?

If you die without a Will, sometimes referred to as dying intestate, your assets will be distributed based on a statutory formula.

This means that all your assets, including your personal belongings, will be distributed based on a formula set out in law rather than according to your wishes. The people who you most want to benefit from your estate may receive nothing at all.

It may also take longer and be more costly for your estate to be administered and finalised if you don’t have a Will. This can cause significant stress for your family and loved ones at an already quite stressful time.

Can I challenge a Will?

You can challenge a Will based on three grounds:

• Where there are questions about a person’s mental capacity at the time that they made their Will
• When you are disappointed with the contents of the Will
• Where you believe that a person made a Will whilst under influence of another person.

There are strict time limits for challenging Wills

If you wish to challenge the contents of a Will, you have six months from the date of the deceased’s death to give notice of a challenge, and nine months from the date of death to issue proceedings. If you delay your claim may be lost.

If you believe you have grounds to challenge a Will, we recommend you contact our Wills and Estates team as soon as you can.

What is a Power of Attorney and do I need one?

An Enduring Power of Attorney is a legal document that appoints a person to make decisions on your behalf should you lose the capacity to do so for yourself.

An Enduring Power of Attorney can give your Attorney power to make decisions if you can’t. Our online system presently only makes Enduring Powers of Attorney for Queensland. You should contact us if you live in another State or Territory.

An Enduring Power of Attorney can apply to your assets, legal and financial affairs (not your health and personal care). You may nominate any, or all, of these areas as areas where your enduring attorney can make decisions on your behalf.

Having an Enduring Power of Attorney in place gives you the comfort of knowing that if something does happen to you, someone you trust has the legal authority to make the decisions that need to be made.

A correctly drafted Enduring Power of Attorney gives the person you nominate the authority to make decisions on your behalf at any point in time while you are alive. The Power of Attorney is no longer of use after you die.

You can nominate who can make these decisions, what decisions can be made, what should be considered in making any particular decisions, any limitations to making decisions, and when they can start making decisions on your behalf.

Above all else, an Enduring Power of Attorney means you have someone who you have appointed to make these decisions in the way that you would want them to be made.

What is an Advance Health Directive and do I need one?

Have you got or even heard of an Advance Health Directive? Similar to your Will and your EPOA, an Advanced Health Directive (AHD) is important. 

A properly drafted and executed AHD ensures your wishes about the medical treatment and care arrangements you desire (and what treatment or care you don’t desire) are met in the event you lose capacity to make your own decisions.

It’s important to note that an AHD is not just for the elderly. Unfortunately, people can unexpectedly find themselves in a position of incapacity, through illness or disease, without notice. Having an AHD in place provides peace of mind for you and your loved ones.

Trusts and Superannuation Funds

As part of the Estate Planning process, the team at Hall Payne Lawyers will provide sound advice on issues involving existing trusts, including family discretionary, unit and other types of trusts, and superannuation funds, both self-managed and industry funds.

With decades of experience behind them, our lawyers give specialist advice on how best to deal with trust and superannuation issues.