The Wills and Estates Transmission

In this episode of the Wills and Estates Podcast, Tony speaks with Emma from de Groots about the risks of informal wills and why handwritten notes, text messages or other documents can create serious complications for an estate.Emma explains the formal requirements for a valid will and what can happen when those requirements are not followed. In some circumstances, a Court may recognise an informal document as a will, but that can create additional uncertainty, cost and delay.The discussion also covers what can happen when someone writes changes directly onto an existing will and whether those handwritten amendments could be treated as an informal codicil.What is an informal will?What are the formal requirements for making a valid will?Can a handwritten note be treated as a will?Can a text message or video recording contain testamentary wishes?What happens if you write changes directly onto an existing will?What is an informal codicil?Why executors may need to bring informal documents to the Court’s attentionThe additional cost and delay informal wills can createWhy properly updating a will is safer than relying on informal changesAn informal document may sometimes be recognised as a will, but relying on that process can create uncertainty and additional legal expense.If you want to make or change a will, the safer approach is to obtain proper legal advice and ensure the document is prepared and executed correctly.In This EpisodeKey Takeaway

Dannielle continues the discussion on the importance of and the legally binding effect of Advanced Health Directives (AHDs), their role in guiding healthcare decisions, family disputes and the conditions under which they take effect. An AHD must be witnessed by a justice of the peace or similar to be valid. It can include refusals of life-sustaining treatments under specific conditions, such as terminal illness or persistent vegetative state. The AHD should be stored securely and shared with trusted individuals and healthcare providers. Legal advice is recommended for those unsure about the irdirectives. Disputes among family members can arise, but the AHD's decisions must be followed unless contrary to good medical practice.

Danni and Jessica emphasises the critical importance of properly documenting financial arrangements, such as gifts and loans, especially within family dynamics. They discuss the potential legal implications of failing to document these arrangements, including the risk of disputes and costly litigation. Jessica and Danni advocate for engaging specialist estate planners to ensure that these arrangements align with overall estate plans and to mitigate risks associated with undue influence and capacity issues. Highlighting the need for independent legal advice and the importance of clear communication among family members regarding financial intentions.Chapters00:00Understanding the Importance of Documentation06:13Engaging a Specialist Estate Planner11:43Consequences of Poorly Documented Arrangements

Tony Skinner welcomes listeners and introduces John de Groot and Rachael Ryan.John de Groot explains the importance of enduring powers of attorney in estate planning.John highlights that enduring powers of attorney continue to be effective even if the principal loses capacity.Rachael Ryan emphasizes the importance of appointing trustworthy attorneys who can make decisions in the principal's best interests.Rachael discusses the need for attorneys to have the necessary skills to handle the principal's affairs.Rachael mentions the importance of providing specific guidance and direction to attorneys.Rachael highlights the need for detailed instructions on the care of pets, especially if they are part of the family.John de Groot discusses the importance of providing detailed instructions on pet care, including dietary preferences and playmates.John mentions that these instructions help ensure the pet receives the same level of care as provided by the principal.Rachael Ryan adds that specific authority to use funds for pet care is crucial.John and Rachel agree that these instructions are essential for maintaining the quality of life for pets.John de Groot discusses the importance of authorizing attorneys to spend money on home care and modifications.Rachel Ryan adds that some clients prefer to live at home as long as possible but want to avoid burdening their family.John mentions that clients may want their attorneys to identify quality nursing home environments if living at home becomes impractical.Rachael and John discuss the importance of authorizing attorneys to continue making gifts and loans as per the principal's wishes.John de Groot discusses the importance of authorizing attorneys to continue living arrangements with family members.Rachael Ryan highlights the increasing trend of adult children living with their parents and the need for clear instructions on their continued residence.John mentions that specific instructions can help avoid conflicts among siblings regarding living arrangements.Rachael and John agree that clear instructions are essential to maintain family harmony and ensure the principal's wishes are fulfilled.John de Groot discusses the importance of authorizing attorneys to fulfill the principal's lifestyle preferences, such as drinking wine or visiting the beach.Rachel Ryan adds that lifestyle costs should be considered when drafting enduring powers of attorney.John mentions that lifestyle preferences should be integrated into the document to ensure the principal's quality of life is maintained.Rachael and John agree that lifestyle instructions are crucial for maintaining the principal's well-being.Rachael Ryan discusses the importance of authorizing attorneys to handle loans and family trusts as per the principal's wishes.Rachael explains that attorneys need flexibility to decide whether to call in loans or allow them to remain unpaid.John de Groot agrees that each case is different, and specific instructions are necessary to avoid disruptions.Rachael Ryan discusses the importance of strategic gifting to minimize disputes post-death.Rachael mentions that some clients authorize attorneys to withdraw superannuation entitlements and gift them to family trusts.Rachael explains that this strategy helps minimize the size of the personal estate and reduce the risk of challenges.John de Groot agrees that strategic gifting is an important part of the overall estate plan.John de Groot summarizes the key points discussed, including pets, home care, gifting, and lifestyle preferences.John emphasizes the importance of customizing enduring powers of attorney to reflect the principal's life and family dynamics.Rachael Ryan adds that specific instructions help ensure that the principal's wishes are fulfilled even if they lose capacity.John and Rachael encourage listeners to consider these issues when creating their enduring powers of attorney.

The conversation covers two main themes: leaving specific gifts in an estate and leaving charitable requests in a will. When leaving specific gifts, it is recommended to leave a percentage of the residue rather than a fixed sum of money, as the value of the estate may fluctuate. Leaving a residuary gift in percentages ensures that the value of the gift adjusts accordingly. The conversation also highlights the importance of correctly identifying charities in the will, as different arms of a charity may have different taxation statuses. It is crucial to reach out to the charity to ensure the correct identification and to discuss any specific gifts that may require special arrangements. 00:00 Leaving Specific Gifts in an Estate 04:02 Identifying Charities in a Will 08:38 Crafting an Estate Plan

Max discusses the potential consequences of not appointing one's own power of attorney, highlighting the difficulty of removing someone once they are in the role. Tony Skinner inquires about the possibility of appointing multiple attorneys, prompting a discussion on the pros and cons of joint and successive appointments. Appointing Multiple Attorneys and Their Operational Considerations Max explains the considerations when appointing multiple attorneys, including whether they should act together or successively. He emphasizes the importance of appointing a successor in case both primary attorneys lose capacity simultaneously. Max discusses the need for clear communication among multiple attorneys, especially if they are family members who may not get along. Tony Skinner asks if appointing a solicitor as power of attorney is advisable, to which Max responds negatively due to the cost and the preference for family or friends. Conflicts Between Attorneys and Resolution Mechanisms Max addresses the common issue of disputes between siblings when one is appointed as the attorney and the other is not, leading to concerns about the attorney's actions. He outlines the process of resolving disputes by applying to the State Tribunal, which can intervene and potentially appoint a public trustee. Max explains that the Tribunal can review the attorney's actions, including financial accounts, and may decide to remove the attorney if necessary. Tony Skinner contrasts this with a high-profile case involving different lawyers and financial disputes, noting the public interest in such cases. Final Thoughts and Wrap-Up Max reiterates the importance of choosing trustworthy attorneys to avoid disputes and emphasizes the attorney's duty to act in the principal's best interests. He advises seeking legal advice if concerned about an attorney's actions and applying to the Tribunal for intervention if necessary. Tony Skinner thanks Max for the discussion and asks for a quick wrap-up. Max concludes by reiterating the importance of the power of attorney document and the need for careful consideration in its appointment to avoid future disputes.

Max introduces the podcast and welcomes Tony Skinner back to the channel. Tony mentions a TV show, "Mother and Son," that humorously explores capacity issues. Max discusses the character Maggie from the show, who might have dementia, highlighting the uncertainty in real-life cases. The conversation shifts to the legal and medical aspects of determining capacity for making a will. Legal and Medical Determination of Capacity Max explains that the court, not the lawyer or doctor, determines capacity for making a will. He outlines the legal test for testamentary capacity, including understanding the nature of a will, assets, and claims on one's bounty. Max emphasizes the importance of lawyers making wills even if they suspect the person lacks capacity, to avoid depriving them of their right to make a will. The presumption of law is that a person has capacity until proven otherwise, and lawyers must avoid biases. Practical Considerations in Will-Making Tony raises the issue of relatives guiding the person making the will, complicating the capacity question. Max advises that instructions for making a will should be taken with the person alone, unless they are elderly and need a support person. He stresses the importance of hearing the person's unaffected wishes directly. Tony and Max discuss the impact of language barriers and the need for interpreters, especially when the proposed interpreter is a beneficiary. Handling Capacity Concerns and Legal Advice Max insists on removing relatives from the room during the detailed instructions for making a will to avoid contamination of the person's wishes. He explains the potential risks of not following proper procedures, including the will being contested and the lawyer being sued. Max suggests that if there are concerns about capacity, the person should be referred to a doctor for a report. He advises framing the doctor's visit as insurance to protect the will from future contests. Final Thoughts and Wrap-Up Max reiterates that capacity is ultimately determined by the court, not by family members or lawyers. He emphasizes the importance of getting a doctor's report and taking detailed notes as good insurance for potential contests. Max clarifies that having dementia does not necessarily mean a person cannot make a will. He concludes by encouraging listeners to subscribe to the podcast and consult with a lawyer for specific legal advice.