Family Law
Caring and comprehensive Family Law services. Protecting what matters most to you.
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How do I write my own will?Dormers does not recommend anyone writes their own will.
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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.
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
Family Law Pathways
Negotiation
A straightforward resolution might be achieved through direct negotiation, either between you and your partner or facilitated by lawyers. Our role includes drafting the necessary settlement documents once an agreement on financial and parenting arrangements is reached. Alternatively, after completing the disclosure process and discussing your options, we can negotiate on your behalf with your former partner’s lawyer. The timeline for this process varies based on the complexity of your case. If negotiations stall, exploring other resolution pathways may be necessary.
Mediation
This involves you and your former partner engaging with a skilled mediator to work towards an agreement, often with legal support present. Mediation is applicable for both financial and parenting disputes. Should in-person mediation be impractical or unsafe, video mediation is an option. Effective mediation requires thorough preparation, including obtaining valuations and pertinent documents. Successful mediations conclude with the drafting and court submission of settlement documents. Our lawyers excel in preparing for and supporting clients through mediations.
Collaborative Practice
In this approach, parties and their collaboratively trained lawyers, alongside a neutral third-party Coach, aim to resolve issues without litigation. The focus is on respectful, cooperative problem-solving that addresses the needs and interests of all involved. This bespoke, process-driven method varies in duration to suit the family's specific needs.
Arbitration
As an alternative to court hearings, arbitration allows an arbitrator to make binding decisions outside the court system, offering a timely and cost-effective resolution. Our firm provides comprehensive arbitration support, including preparation and award registration.
Litigation
When other resolution paths are exhausted or unsuitable, litigation may be inevitable. Our firm, recognized for handling complex family law cases, offers exceptional litigation support. Our skilled litigators aim to guide you through the process and, where possible, steer the case towards an agreement before reaching trial.
The initial action in any family law issue should be to consult a legal professional. This holds true whether you're considering separation, have recently separated, or have reached an informal agreement with your former partner. Understanding your situation and goals allows us to assess the potential risks and advantages, prioritise the welfare of any children involved, and present you with the most suitable options. Your unique circumstances and preferred approach to resolving the matter will guide our advice.
Available strategies for resolution encompass negotiation, mediation, collaborative practice, arbitration, and litigation.
We offer services for a wide variety of cases, ranging from simple to highly complex. Our team possesses extensive experience in all facets of family law, including both collaborative and litigious approaches. Our team's comprehensive expertise is unmatched, making us a preferred choice for diverse family law matters.
We offer support in various areas: