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  • DO inform the person that you have appointed as the Executor in your Will, or donee of your enduring power of attorney (EPA) (i.e. your Attorney).
  • DO tell your Attorney and Executor where your documents are kept and make sure they can access them (do they need access to a safe? DO they need a key or a code etc?)
  • DO keep your documents unmarked and in good condition.
  • DO keep your documents in your control and possession, particularly EPA’s as they are very powerful documents giving power to access your bank account, even sell property. Be careful!
  • DO review your documents at least every 3 to 5 years or at major life events. You can revoke, amend or make a Will and EPA at any time, provided you have capacity to do so.
  • DO be aware, both marriage and divorce void a Will. But separation or a Family Court property settlement do not.
  • DON’T write on or mark your documents in any way; doing so may void the documents.
  • DON’T attach anything to your Will (no paperclips, staples, pins etc) as the mark left on the document may suggest that a codicil (amendment) to the Will has been removed, it may then be rejected by the Probate Registry.
  • DON’T lodge enduring powers of attorney in safe storage at the bank as your donee will need an EPA in their hands to get it from the bank!

DO see a lawyer to prepare your Will and EPA. It is money well spent to avoid problems for your loved ones after you die, or lose mental capacity.

A homemade or ‘do-it-yourself’ Will may cost your estate a fortune in the end.

The legal meaning of a word can be very different to its everyday meaning. This can cause serious problems when someone makes a “do-it-yourself” Will.

By way of example, in a homemade Will an elderly man left ‘all his money’ to his chosen beneficiaries. An expensive and lengthy legal battle has ensued over whether money includes an accommodation bond to a third party. More than $350,000 was on the line for the beneficiaries of his Will. If the court finds his money is a partial intestacy, significant sums will be distributed to people that were not nominated in his Will.

If you leave any personal instructions for your Executor in relation to property, for example: “I would like my jewellery to go to my eldest daughter”, you should be aware of the following rules:

  • DON’T use a computer or typewriter. The instructions must be written in your own handwriting to show that you wrote all of it.
  • DON’T sign or date your instructions. As you are directing the disposal of property after your death, if the document is signed and dated it may raise the question ‘is this intended to be a new Will?’ You may accidentally void your real Will.
  • DON’T attach the instructions to your Will (see above) or insert them between pages of your Will. Keep them separate.
  • DO clearly state that the instructions are not intended to be a Will or codicil.
  • DO be aware that personal instructions are an expression of your wishes only and are not binding on your Executor.

If you would like further advice please don’t hesitate to contact us on 9375 3411 to make an appointment.

 

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