How much will it cost to make a Will?

How long is a piece of string? The costs will depend upon your personal circumstances, including assets that you own or control, the complexities of your family situation and the details involved in your Will. It is one thing to have a Will, it is another to ensure that as far as the law allows, it is effective to give effect to your intentions. That can take some planning and in some situations, asset ownership restructuring outside of the will itself.

We offer a no obligation initial meeting to discuss your circumstances and intentions. We will be upfront with our recommendations and anticipated fees to enable you to consider those before proceeding. You should beware of any provider that quotes you over the phone without taking a deeper look at your situation and intentions. The cheapest service will never usually be the best service and the adage is true that “you get what you pay for”.

I don’t have any significant assets, do I still need a Will?

Anyone over the age of 18 years should have a Will, even if its only function is to appoint an executor to act as your legal personal representative after your death. Apart from dealing with all assets that you own during your lifetime (sometimes you may not even be aware of them) an executor can step into your shoes after death and assert other legal rights and entitlements on your behalf. Having a Will is not reserved for the wealthy. If you don’t have a Will your estate will be distributed in accordance with a government formula that for most will not reflect their intentions.

How long does the process take?

Again, it depends on your circumstances. We usually arrange an initial meeting (whether that be in person, by Zoom or other remote technology) to get to know you, and your circumstances and objectives and to take your instructions. We then prepare draft documents for you to consider and arrange a signing appointment once you are satisfied with the draft documents. The whole process can typically take somewhere between a day (in urgent circumstances) to two weeks to a month between an initial meeting and signing documents. That may depend though on us being provided with all relevant information required in order for us to properly consider your situation and complete your documents.

My friend or relative is not able to make a Will, can I make one on his or her behalf?

The short answer is no. If a person is unable to make a Will there are legal provisions to enable the Supreme Court to approve a Will being made on behalf of the person who does not have the requisite legal capacity to do so. That can include a Will being made for a minor or a Will being made for a person who suffers from a lack of mental capacity. In the absence of a Court Order, a Will cannot be made by another person, for example by them acting as Power of Attorney. This is a very intricate area of law and specialist advice should be obtained if you consider that circumstances might appropriately require the making of a Court approved Will.

Can I have a copy of someone else’s Will or other documents that you hold?

It depends on the circumstances. If you are a person authorised in the documents to obtain a copy, then you should be able to obtain copies as required. If you are looking to obtain someone else’s documents and you are not an appointed executor (after death) or their attorney during their lifetime, then we will not be able to release documents to you or advise you as to their contents, in the absence of an authority from the relevant person.

I hold a Power of Attorney, can I make medical decisions for the person that I hold it for?

No, a Power of Attorney relates to financial and property matters and affairs of the maker. The relevant laws that apply to Powers of Attorney do not extend to medical, health, residential or other lifestyle decisions. Those are specifically covered in an Advance Care Directive document.

What’s the difference between a Power of Attorney and an Enduring Power of Attorney?

A general Power of Attorney is one that is not expressed to be enduring and it is revoked by operation of law in the event of the loss of mental capacity of the donor. For example, if A appoints B under a general Power of Attorney to manage their financial affairs whilst they are overseas on a holiday, that general Power of Attorney would be revoked if A lost legal capacity during that time and the authority of B would cease on A’s loss of capacity. An Enduring Power of Attorney “endures” beyond the donor losing legal capacity and is generally the most desirable form of a Power of Attorney that enables the attorney to manage the financial or property affairs of the donor in the event they become unable to do so themselves.

If I have given someone a Power of Attorney, can I still make decisions for myself?

Yes, provided you still have capacity to be able to manage your affairs. Giving a Power of Attorney will not preclude you from being able to manage your own financial and property affairs, notwithstanding that you may have appointed another person to be able to act lawfully on your behalf at the same time.

Will a Power of Attorney enable me to make decisions for my company?

It depends on the terms of the Power of Attorney and the Constitution of the company. Generally, the office of a director of a company is a personal one and cannot be delegated to another person by a director under a Power of Attorney in the event of their loss of capacity. The Constitution or Shareholders Agreement of the company may however enable a director to appoint an attorney in the event of their loss of capacity or for other circumstances. Specialist advice should be obtained and the deed creating the Power of Attorney itself should generally allow for the attorney to act in the donor’s capacity as a director.

A company can itself also appoint a Power of Attorney if its Constitution or Shareholders Agreement allows for it.

What happens to my Power of Attorney on my Death

The Power of Attorney dies with you. Your affairs are then covered by your Will and the executors nominated in the Will will be the persons authorised to deal with your estate.

Do my superannuation benefits get paid in accordance with my Will?

Generally, superannuation death benefits do not form part of the deceased member’s estate, subject to the rules of the relevant superannuation fund. Deceased member’s death benefits will generally be paid at the discretion of the trustee to one or more of the member’s qualifying dependents for superannuation purposes. That may or may not reflect your wishes.

It is possible (and recommended) for members of superannuation funds to make and maintain a current binding death benefit nomination that binds the trustee of the superannuation fund to pay the member’s death benefit in accordance with the terms of that nomination. The nomination can be to one or more of the member’s qualifying dependents or to the executor of their estate to follow the terms of their Will. It is important to keep binding death benefit nominations current and ensure that anyone appointed continues to maintain dependent status, otherwise a nomination can be invalid.

Again, specialist advice is recommended.

If a Will can be contested, what is the point of having one?

We are often asked this question. The point is that a Will is an expression of your intentions and wishes as to both the appointment of executors and the gifting of your estate. In the absence of a Will your estate will be distributed in accordance with a set government formula. It is strongly advisable to make a Will that reflects your intentions. It is not an easy matter to contest a Will. Having a properly made Will by an experienced solicitor will go a long way to ensuring that your wishes are carried out and any potential claims against your estate are minimised.