Important points relating to wills and enduring powers of attorney

Separation and wills

Separation does not have the same effect.  If you separate from your spouse or civil union partner the provisions of your will relating to your spouse or partner will remain valid, unless a separation order is made or the marriage or civil union is legally dissolved.  If you intend to exclude your spouse or partner in your will, you will need to change your will.

De facto relationship and wills

Being in or ending a de facto relationship does not affect either the validity of a will or any provisions in a will relating to a de facto partner.

What happens if you do not have a will?

If you die without a will, this is known as dying “intestate”.  If you die intestate, the Administration Act 1969 specifies how your property will be distributed.  For example, if you die leaving a husband, wife, civil union partner or surviving de facto partner and children, then:

1. all your personal chattels will go to your partner;
2. the balance of your estate up to $155,000.00 will go to your partner; and
3. one third of the remainder will go to your partner and with the other two thirds going to your children.

If you own property as joint tenants, this property will automatically (by survivorship) go to the other joint owner(s), and will not form part of your estate

What is the difference between joint tenants and tenants in common?

Where more than one person owns property it will be owned either as joint tenants or tenants in common.  If owned as tenants in common, then each owner will own a defined share of the property.  For example, where there are 3 owners each could own a one third share, or one owner could own 80% and the other two owners 10% each.  Under a joint tenancy there is no defined share.  The property is simply owned jointly.

One significant difference between owning property as joint tenants rather than as tenants in common, is that on the death of one of the joint tenants, the property will pass by survivorship to the remaining owners.  It also means that the property will not form part of the deceased’s estate and the deceased’s share of the property will not pass to the beneficiaries under their will.

Do I need an enduring power of attorney? Can’t that wait until I am older?

A power of attorney is automatically revoked on the happening of certain events.  One of these is if the person granting the power of attorney, called the “donor” becomes mentally incapable.  However, a power of attorney granted under the Protection of Personal and Property Rights Act 1988 (“the Act”), called an “enduring power of attorney”, is not revoked if the donor becomes mentally incapable.

Under an enduring power of attorney, you nominate someone to manage your care and property if you become mentally incapacitated through accident or illness.  As there is a risk that this can happen at any time, it is therefore advisable for anyone who is over the age of 18 years to complete an enduring power of attorney.

If you do not have an enduring power of attorney and you become mentally incapable, then in order for decisions to be made in respect of your property or personal care and welfare, an application would need to be made to the Family Court for an order that a person be appointed as your manager.  As the Court will require evidence of the suitability of the proposed appointee, this is an expensive process which can be avoided if enduring powers of attorney are signed.

Conclusion

There are some important facts of which everyone should be aware in respect of wills and enduring powers of attorney.  For example, getting married or entering into a civil union will invalidate a will unless the will was made in contemplation of the marriage or civil union.  Separation does not have the same effect.  It is therefore important to take advice when significant events occur to ensure the law will uphold your intentions.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.