Estate Planning

When it comes to estate planning, we start with the end in mind.

Can my Will be changed after I die?

Who Can Legally Read Your Will After Your Death in NSW?

Why a Will Matters: Understanding Intestacy Laws in New South Wales

How do I write my own will?

Dormers does not recommend anyone writes their own will.
Why should I have a will?

If you don’t have a will, then you have no executor and therefore, no one is authorised to represent your estate once you die. An application for Letters of Administration can also cost thousands of dollars and there is complexity around the process. The other thing to remember is that someone you don’t even like or know could end up being your Administrator. If you leave a will, then you can say who manages your estate when you die.
But I don’t have any assets, what’s the point in having a will?

These days, everyone at least has superannuation so there is some risk that may fall within notional estate, in NSW at least. Most super policies also contain life insurance, which can be substantial. This can become part of your estate in some cases.
What is testamentary capacity?

In order for a will to be valid, the will-maker must have testamentary capacity. This means that the will-maker must: understand the nature of making a will and the effect of making a will understand, at least in general terms, the nature and extent of the property of which they are disposing be aware of those who might be thought to have a claim upon their testamentary bounty have the ability to evaluate and discriminate between the respective strengths of the claims of such persons
Do I truly have testamentary freedom?

You are free to set out your wishes and how you would like your assets to be distributed after death in a will. Such a freedom, however, is not absolute in Australia.
What are mutual wills?

Mutual wills can also be called mutual will contracts. Mutual wills form a legally binding contract between two people. It involves two wills being drafted in terms that both parties agree to, and it prohibits either party from revoking or amending their will unless the other party agrees. As a result, when one person dies, both wills can no longer be amended. See also: The Curious Case of the Mutual Will
What is the difference between a “normal” will and mutual wills?

Usually, normal wills are revocable. That means it can be cancelled and you can make a new one. However, mutual wills can only be revoked while both parties are still alive, have capacity, and when there is agreement between the parties. Therefore, mutual wills contain an express or implied agreement not to revoke the will after the death or incapacity of either party.
What is an example of a mutual will?

An example may be where a couple makes an agreement that when the surviving partner dies their property will go to a specified beneficiary. Another example may only deal with the will of one of the parties. For example, when a housekeeper agrees to work for free on the basis that their employer will leave the house and contents to them.
When would I be involved in a mutual will?

A common scenario is when you wish to gift your estate to your surviving spouse to ensure your wealth passes on to your children when your surviving spouse dies. A mutual will would ensure that when you die, your surviving spouse cannot amend or revoke the will. This means your children will become the “ultimate beneficiaries” of your estate. In another case, you may wish to gift your estate directly to your children without gifting anything to your surviving spouse. In such a case, a mutual will could prevent your surviving spouse from making a family provision claim against your estate.
Are mutual wills confined to husbands and wives?

No. Mutual wills can be made between any two people who wish to bind each other to an estate plan.
What happens if one party breaches the mutual will?

If your surviving spouse breaches the mutual will, you can reply on the mutual wills contract to obtain some type of compensation.
Can you give me an example of how a mutual will would work?

Imagine Clare and John are married. They each have a daughter from a previous marriage. They make wills to agree to leave their assets to each other. In such wills, they agree the estate of the surviving spouse would be equally divided between Clare’s daughter and John’s daughter. John dies a few years later and his estate passes to Clare. At the time of John’s death, Clare’s estate is held on a constructive trust. (Constructive trust is an arrangement where a person holds property as the owner for the benefit of at least one beneficiary). This means that Clare must deal with the assets in the estate in the way that was outlined in the mutual will.

Why Choose Us

As lawyers specialising in wills and estates litigation, we have handled countless will dispute cases. We have seen the problems that might arise from a poorly drafted will. Our experience in these cases is what sets us apart from traditional estate planning lawyers.

We offer several advantages, especially for complex or larger estates:

Expertise in Dispute Resolution

We are well-equipped with the knowledge to resolve disputes that can arise during estate planning and execution. We will be able to identify potential conflicts beforehand and structure your estate plan in a way that minimises the risk of future litigation.

Understanding of Litigation Risks

We have firsthand experience with the pitfalls that can lead to disputes over wills and estates. We will use this knowledge to draft an estate plan that is less likely to be contested, protecting your wishes and your beneficiaries.

Protection Against Claims

We can provide advice on how to protect your estate from potential claims by creditors, ex-spouses, or estranged family members. Our strategic approach can safeguard your assets and ensure they are distributed according to your wishes.

Complex Estate Management

If your estate involves complicated aspects like business organisations, multiple properties, or assets that span different jurisdictions, we will be able to navigate these complexities. We can ensure that your estate plan covers all the legal requirements and reduces the likelihood of further disputes.

Current Legal Knowledge

Estate law is constantly evolving. We are always keeping up to date with the latest legal developments and changes, ensuring your estate plan remains compliant with current laws and regulations.

Comprehensive Estate Planning

Beyond just drafting a will, we can help with a range of estate planning, including trusts, powers of attorney, enduring guardianship, and more. Our comprehensive approach ensures all aspects of your estate are covered.

Peace of Mind

Knowing that your estate plan has been prepared with the possibility of future disputes in mind can provide significant peace of mind. You can be confident that your wishes will be honoured, and your beneficiaries are protected.

Engaging us for your estate planning can prove especially beneficial if you anticipate any complexity or contention in the administration of your estate. Our specialised skills and experience can make a significant difference in ensuring your estate is secure and your planning intentions are fully realised.

Cost of Making a Will

The cost of preparing a Will depends on various factors, such as:

The types of assets you own
The complexity of your wishes for asset distribution
Who drafts the Will for you

ESSENTIALS PACKAGE

$800

PLUS GST AND DISBURSEMENTS

Includes:

Basic Will document
Power of Attorney document
Enduring Guardianship document
Safe custody with Dormer Stanhope

Get the must-haves sorted without the fuss. Our Essentials Package covers the basics to make sure your wishes are clear and protected.

CUSTOM PACKAGE

FROM $950

PLUS GST AND DISBURSEMENTS

Includes:

A Will tailored to your specific needs, for example, if you own a business, have a blended family, a self-managed super fund, or require a long-term trust (known as a testamentary trust) or certain conditions in your Will
Power of Attorney document
Enduring Guardianship
Safe custody with Dormer Stanhope

Updating your Will

It's important to review your Will every two to five years or whenever a significant life event occurs. Key events that may require an update include:

Marriage or remarriage
Having children or grandchildren
Significant changes to your financial situation
Separation or divorce
Moving overseas or acquiring international assets
The death of a beneficiary or executor

Changes in your personal or financial circumstances can impact the terms of your Will, so regular updates ensure it continues to reflect your current wishes and legal requirements.

Storing your Will

Ensuring your Will is stored securely and that your executor, beneficiaries, and family know where to find it is essential. A Will is only effective if its existence and location are known.

Risks of Storing Your Will at Home

Keeping your Will at home can lead to it being:

Lost – Making it difficult or impossible to execute your wishes
Damaged – Potentially invalidating its contents
Stolen or destroyed – Leading to disputes or intestacy issues

If your Will cannot be found, there is a risk that:

Your assets may not be distributed according to your wishes
Additional legal costs may arise, causing delays and complications for your beneficiaries

Secure Storage Options

Many people choose to store their Will with their solicitor, ensuring it remains safe and accessible when needed.

Ensuring a Will is Valid

For a Will to be legally valid, it must:

Be in writing, either typed or handwritten;
Be signed by you, or by someone else on your behalf and in your presence if you are unable to sign yourself; and
Be witnessed by two adults who are present at the time of signing (note that witnesses cannot be beneficiaries).

What to Include in a Will

Creating a Will involves several key decisions. Before consulting a professional, consider the following:

An executor is an individual or organisation responsible for administering your estate in accordance with your Will after you pass away.
It is essential that your executor is knowledgeable about legal, financial, and taxation matters and can remain impartial in the event of any disputes. The role can be both emotionally demanding and time-consuming, so it is important to choose someone you trust and who can handle these responsibilities.
You may opt to appoint an independent professional to act as your executor. This can help ease the burden on loved ones during what is often a challenging and emotional time.
Listing all your assets, whether owned solely or jointly, is essential when preparing your Will. Providing your executor with a record of your assets and liabilities, or ensuring they know where to find these details, can streamline estate management and prevent unnecessary delays.
Your asset list may include:

Real estate or land (including any mortgages or secured loans)

Business assets

Cash and bank accounts

Shares and investments

Valuable items such as artwork, jewellery, or vehicles

Other assets like intellectual property, royalties, patents, and copyrights

Assets held in companies or trusts may require specialised advice, as they are often subject to different legal considerations.
Appointing a Guardian for Your Children
If you have children under 18, it’s important to nominate a guardian in your Will to care for them and make key decisions if both you and the other parent pass away before they reach adulthood.
Choosing a Guardian
Selecting a guardian is a significant decision, ensuring you are comfortable with who will take on this responsibility. You may appoint one or more guardians, but it’s crucial to discuss the role with them beforehand.
A guardian is responsible for long-term decisions about your child’s education, religious upbringing, health and lifestyle.
Important Discussions
Before finalising your decision, consider discussing:

Living arrangements (e.g., will your child move in with the guardian, or will the guardian move into your home? What if the guardian is an elderly grandparent living in a retirement village?)

Education plans

Financial support and access to funds

Establishing a trust for your child in your Will

If No Guardian is Appointed
If no guardian is named in a valid Will, a relative or close family friend, such as a grandparent, aunt, uncle, sibling, stepparent, or family friend, can apply for guardianship. In such cases, the Family Court will determine who is most suitable.
When a Guardian is Appointed Despite a Surviving Parent
If you appoint a guardian while the other parent is still alive, the guardian will share responsibilities with the surviving parent. However, if the surviving parent objects, the appointed guardian may need to seek a decision from the Court.
A beneficiary is an individual or organisation, such as a charity, that receives a gift, benefit, or share of your estate after your passing.
When choosing beneficiaries, it’s also important to consider who should receive their share if a beneficiary passes away before you.
After your death, beneficiaries generally have rights, including:

Being notified of their inclusion in a valid Will

Receiving a full copy of the Will

Being informed of any legal proceedings, claims, or disputes involving the estate

Updates on any delays in the administration process

Receiving their inheritance within a reasonable timeframe, though certain circumstances may cause delays
Choosing Gifts for Your Beneficiaries
When creating your Will, you need to decide what gifts you want to leave to your beneficiaries. There are different types of gifts, including:

Monetary gifts – You may wish to include wording that accounts for inflation to ensure the value of the gift does not diminish over time.

Specific assets – This can include real estate, shares, motor vehicles, furniture, jewellery, or any other possessions you own at the time of your passing.

Residual estate – This refers to what remains of your estate after all debts, expenses, and specific gifts have been distributed.

If you do not allocate any specific assets or monetary gifts, your entire estate will be distributed as a single gift, rather than as a residual portion.
Ensuring Your Will Covers Your Entire Estate
It is crucial that your Will is properly drafted to account for your entire estate. Any assets not specifically covered by your Will may be distributed according to intestacy laws.
Gifts Held in Trust
You may also choose to place gifts in a trust, allowing for controlled distribution under specific terms. There are various types of trusts that can outline how and to whom gifts are distributed, providing additional flexibility and protection for beneficiaries.
Although pets are legally considered property, they are often valued as family members. Their ongoing care and welfare should be included in your Will and estate planning.
Choosing a Caregiver
You can nominate a trusted friend or family member to look after your pet. It’s important to discuss this with them in advance to ensure they have the time, ability, and willingness to take on the responsibility.
Financial Support for Pet Care
You may choose to leave a sum of money to the nominated caregiver to help cover expenses or as a token of appreciation for taking on the care of your pet.
Other Options for Pet Care
If no suitable caregiver is available, you might consider:

Establishing a pet trust – A trust can be set up with funds and specific instructions for the care and maintenance of your pet, managed by your estate’s executor.

Donating your pet to a shelter or charity – Some animal welfare organisations and rescue services accept pets for rehoming. However, certain organisations may require a financial contribution to cover care costs, so it’s best to check their policies in advance.

Key Considerations
When planning for your pet’s future, think about:

Their expected lifespan

Ongoing expenses such as veterinary care, food, insurance, and other needs

Ensuring a reliable caregiver is in place for their long-term wellbeing
A trust is a financial arrangement where a person or entity holds assets, such as property, cash, or shares, on behalf of and for the benefit of another. Trusts can be established for various reasons, including:

Providing ongoing financial support for beneficiaries, such as children or grandchildren

Facilitating tax-effective estate planning

Supporting a charitable cause

Types of Trusts
Choosing the right type of trust depends on your specific needs. Common types include:

Trusts for children and young adults – Ensuring financial support until they reach a designated age (e.g., 18, 25, or beyond)

Trusts for vulnerable beneficiaries – Protecting assets for individuals who may struggle to manage their finances or are at risk of financial exploitation

Charitable trusts – Providing long-term financial contributions to a chosen charity

Special disability trusts – Offering financial support for a beneficiary with a severe disability, ensuring their needs are met

Accommodation trusts – Holding property for a beneficiary who requires housing support

Role of the Trustee
The trustee is responsible for managing the assets within the trust. Given their significant control, it’s essential to choose someone who is trustworthy, financially capable, and able to fulfill the role’s legal and administrative responsibilities.
To simplify the process for your executor when closing or transferring accounts, keep a record of your existing accounts and memberships, including:

Bank accounts

Superannuation and life insurance policies

Utility providers (electricity, gas, water)

Club memberships

Online accounts (email, social media, loyalty programs)

Digital records (photos, documents stored in cloud-based services)

Organisations you have a formal relationship with

Once you’ve compiled this information, store it separately from your Will. However, inform your executor, family, or trusted friends where to find the list, as it will assist them in managing your estate efficiently.

Understanding Wills

A Will is a crucial legal document that outlines your wishes for your estate after you pass away. It typically covers:

How your assets will be distributed and who will inherit them
The appointment of an executor (or multiple executors) to manage your estate
Naming a guardian for your children and establishing any necessary trusts for beneficiaries
Any specific requests regarding your funeral or memorial arrangements