Wills and Power of Attorney

In Australia, the law governing wills and estates is determined by State Legislation. In New South Wales, the principle pieces of legislation governing wills and estates are the Wills, Probate and Administration Act 1898 (the "WPAA"), the Family Provision Act 1982 and the Trustee Act 1925.
Where wills establish trusts, for example for the provision of children, income and/or life estates, careful consideration must also be given to other State and Federal legislation such as that which deals with matters concerning corporations, taxation, superannuation and real property dealings.

Common now is the will that meets the needs of a current marriage or de facto relationship (including any resulting children) and the needs of a child or children of a previous relationship.

It is also increasingly common, especially in cities like Sydney where real estate values are high, for extended family living to occur where generations live in the one house with adult children making substantial contributions and improvements to real estate owned by their parent or parents. In these circumstances both parents and children are concerned to provide a secure and fair legal foundation for those contributions and interests in the substantial asset of the family home, while not necessarily wishing they be subject to the effect of a domestic relationship as may be imposed pursuant to the Property (Relationships) Act (NSW).

Good estate planning and a complete and thorough will are now essential facets of adequate personal and financial life plans.

In Australia we still do not have the legal entity known as a "Living Will". In other words, a legal vacuum exists with regard to a person's rights while they still live (and their will has therefore not taken effect) but in circumstances where, through illness or accident, they are not able to manage or understand their own affairs. An individual in these circumstances would have no way of legally instructing lawyers, banks or medical practitioners with regard to their affairs; except through the complicated, expensive and impersonal means of someone else applying to the Supreme Court of New South Wales for a formal legal order appointing a bureaucrat to manage the individual's personal affairs for a significant ongoing yearly fee. In these circumstances, everyone should seriously consider the creation of an Enduring Power of Attorney appointing a trusted partner, relative or friend as that person's legal personal representative to cover this type of situation and so as to avoid the need for the appointment of an impersonal bureaucrat to do the same job. At Wallbanks we encourage our clients who are preparing wills to also have a Power of Attorney prepared at the same time.

We consider our client's legal well being to be founded upon proper estate planning and the provision of a well considered and thorough will. At the same time we recognise the natural human tendency to procrastinate in matters related to death and with regard to matters involving personal, family and financial issues. At the same time, the passage of new laws such as the Property (Relationships) Act (NSW) and the changing nature of a person's asset holding means that a will, once done, should be regularly reviewed.

At Wallbanks, we seek to provide the kind of personal consideration, awareness and legal expertise required to make the process of your estate planning and the drafting of you will and other related documents a comfortable experience that will provide both security and satisfaction in the management of your affairs.


	Wallbanks - Legal 1 Victor Parade, Shoal Bay, NSW, Australia, 2315 Ph: 61 2 49844911 - Fax: 61 2 49849805 Email: wallbanks@bigpond.com ABN: 39 488 280 615