What are Wills, Enduring Powers of Attorney and Enduring Powers of Guardianship?
Wills, Enduring Powers of Attorney and Enduring Powers of Guardianship documents are the best ways to ensure your wishes will be respected when the time comes. All too often, the process to obtain and secure these documents can be confusing and costly – and as a result, many people become unwell or pass away every year without the legal frameworks in place for the time after they’re gone.
Ilberys specialises in the provision of this sort of documentation.
Wills, Enduring Powers of Attorney and Enduring Powers of Guardianship reflect arrangements that usually take effect if you become very unwell or pass away. They allow people to make decisions for you when you are no longer able to make those decisions yourself – but they do so within reason.
A Will acts as a set of instructions for your estate after death, whereas Enduring Powers of Attorney and Enduring Powers of Guardianship are used to entrust and direct somebody close to you to make the best choices for you while you are incapacitated due to mental or physical health issues.
What can Ilberys help me with?
Ilberys Lawyers offer advisory services if you’re just getting started with this sort of documentation. We can help you figure out what you need and figure out what you don’t need – and make sure you aren’t paying for more than what will benefit you and your family. Once those decisions are made, we can prepare and finalise all the documentation for you at a fair and reasonable cost.
We can also help if you’ve been appointed as an attorney or a guardian by a close friend or family member: we can explain what it is you are required to do and how you can complete your duties as an attorney or a guardian.
Find out why Ilberys has been a preferred firm in WA since 1955 – reach out for a free initial consultation today.
Frequently Asked Questions
Q: What to expect at your first appointment?
In preparation for your first appointment, we’ll ask you to send us any important documents that you may have that are related to your matter, as well as any notes you have made to assist us understand your matter.
Then, during your first appointment, we’ll listen to what you have to say and what your concerns are, and we’ll ask you questions to determine whether we can help you with what
you need. We’ll also explain the fee arrangements that we are able to offer for a matter such as yours.
By the end of your appointment, both you and us should know whether we can help and, if so, the way forward with your matter. However, sometimes we might need more information and, if so, we’ll let you know what else we need to be able to work out if we can assist.
Q: How are our fees charged?
We offer a variety of different fee arrangements depending on your circumstances and the circumstances of your matter: examples include deferred fee, instalments over time and fixed fee, and we’ll explain what we are able to offer during our first appointment. We’ll work with you to try and come to a mutually acceptable arrangement.
Q: What is a corporation?
A corporation, also known as a company, is an organisation that operates as its own legal entity, separate from the individuals that physically run the business. The corporation owns the business and, usually, the people operating the business own the corporation.
Q: What is a not-for-profit organisation?
A not-for-profit organisation does not operate for the purpose of earning profits for its owners, rather all money earned or donated is reinvested back into the organisation to pursue its objectives.
Q: What is the best organisational structure for my business?
Each business is different. When it comes to organisational structures, there isn’t a one-size-fits-all solution. We can help you work out which is the best for your business.
Q: What should I be reviewing in a new contract?
Making or reviewing new contracts are an unavoidable part of any business. From signing new staff contracts, to new lease agreements or signing for new software, businesses seeking new goods and services frequently enter into new contracts. To ensure both parties’ rights, obligations and expectations are clearly outlined, reviewing a contract can take a lot of diligence.
We’ve set out a quick checklist for reviewing a contract. It’s not comprehensive and each contract requires careful consideration as to what might be relevant for your circumstances, but the following are likely to be relevant in most circumstances:
1. Is your business correctly named and identified?
2. Are all the other parties correctly named and identified? Are you doing entering into the contract with the business you thought you were, or some other business?
3. What are the obligations of each party?
4. What happens if someone can’t comply with their obligations?
5. When does the contract end, and when can the contract be terminated early?
6. Are there any consequences or penalties for termination?
7. Are there any confidentiality obligations?
8. Is my business’ intellectual property and confidential information protected?
9. Are there any restrictions on what I can do in my own business, both during the contract and after?
10. Have I said anything to the other parties that is important but which is not in the contract? Have the other parties said anything to me that is important but which is not in the contract?
11. Are there any obligations on any party that are not specified in the contract?
Q: What is a contract breach?
When two parties enter into a contract, they agree to follow all the terms and requirements outlined in the contract. A breach of contract occurs if either party cannot carry out their contractual obligations under the contract within the time specified in the contract, and there may be serious consequences for any breach. We can help guide you through the complicated world of contract law at Ilberys.
Q: What is a restraint of trade?
Businesses often include a restraint of trade clause in their contracts, which impose limits on a person’s or business’s activities.
Restraints take many forms. In employment contracts, the two most common restraints are:
· Non-compete restraints: forbids a former employee from working for a competitor’s business, or from starting their own competing business
· Non-solicitation: forbids a worker from calling on clients and employees of their previous employer to leave that business.
Restraints are not limited to employment contracts: for example, two businesses that are in a business relationship with one another (such as a wholesaler and retailer) may impose restraints on one another, to protect their businesses. For example, a wholesaler may agree to supply products at a certain price to a retailer, but only if that retailer agrees not to purchase products from any other wholesaler. Restraints are also frequently used in business purchase and sale agreements, to prevent the former owner from immediately starting a competing business, attempting to entice away staff or taking the business’s intellectual property.
Not all restraints are legally enforceable, and they require careful drafting to avoid being invalid. We can help you prepare appropriate restraints for your business, and review existing restraints as to whether they are likely to be enforceable.
Q: What is the law of negligence and what does it have to do with personal injury, motor vehicle accidents or workers compensation?
The law of negligence requires people to, when going about their lives, take reasonable care for the safety of others. This means that a person has rights under the law of negligence if they have been injured or hurt because someone else has not taken reasonable care.
Q: Are a person’s rights under the law of negligence subject to a time limit?
Typically, a person loses their rights under the law of negligence three years after they were hurt or injured in breach of that law. However, this differs depending on the circumstances and in some cases the limit can be extended or shortened.
Q: What are a person’s rights under the law of negligence?
If you can establish that:
(a) a person owed you a duty of care;
(b) that person breached that duty; and
(c) as a result, you suffered an injury or harm;
then under the law of negligence, you are usually entitled to compensation for that injury or harm. Injury or harm can include a pre-existing condition that has been made worse.
Duties of care are imposed in a variety of situations. For example, drivers of motor vehicles generally owe duties of car to other road users, including cyclists, pedestrians and other drivers.
The requirements of the duty of care and whether or not a person has taken reasonable care will depend on the circumstances.
Q: I have made a claim for personal injury as a result of a car accident. How long will it take to finalise my claim?
This all depends upon the circumstances of your claim, including how complex the incident was, how bad the injuries were and how much treatment is required for the injury. While a claim can often be resolved within 18 months of when it was commenced, more serious cases may take longer.
Q: What about my workers compensation claim? How is that different to a claim under the law of negligence?
If you have made a claim for workers compensation, your claim will be subject to special legislation which modifies the law of negligence, so different rights and entitlements apply. Your rights and entitlements will differ depending on the scheme that applies to the claim you have made.
Examples of workers compensation schemes include the following:
(a) the Western Australia Workers Compensation scheme, governed by WorkCover and the Workers Compensation And Injury Management Act 1981;
(b) the Commonwealth Workers Compensation scheme, governed by Comcare and the Safety, Rehabilitation and Compensation Act 1988; and
(c) the Seafarer’s Workers Compensation scheme, governed by Seacare and the Seafarers Rehabilitation and Compensation Act 1992.
Each scheme is different, but most usually provide for “no-fault” claims, meaning that to succeed in the claim that you have made, you do not need to demonstrate that your employer failed to take reasonable care or otherwise breached a duty of care owed to you.
Q: One of the reasons why I am seeking help is because I have made a claim and I am finding it overwhelming. If I ask you to help, how much involvement is required by me to continue my claim?
It is stressful enough sustaining an injury without having to think about all that is involved when managing your claim. Our experienced work injury lawyers can guide you through the rest of the claims process step-by-step, to ensure the process runs smoothly and efficiently.
Q: My family member or friend has died and I am the executor in the Will. What do I do?
As the executor, your primary obligations are to secure the assets of the estate and to make the appropriate arrangements for a funeral.
You are not expected to pay for the funeral from your own funds, and upon presentation of the original Will, original Death Certificate and an invoice from a funeral director, most banks will release funds from the deceased’s bank accounts to pay for the funeral.
However, if you or someone else does pay for the funeral, that person is entitled to be reimbursed from the estate.
Then, provided the assets are secure, once you have had some time to grieve, you can commence administering the estate and carrying out the terms of the Will. You may need to apply for probate of the Will.
The obligations of an executor are wide and are not limited to those described above. As an executor you are also required to keep detailed accounts and records of the estate. We can help with any and all stages of acting as executor and carrying out the terms of the Will, from limited advice through to complete executor and administration services. The Executor’s expenses in seeking legal advice are generally paid from the estate as an estate expense.
Q: What is Probate?
Probate is where the Supreme Court issues a formal document which confirms that, based on the information provided to the Court, the Will is valid and that the executor named in the Will has the authority to carry out the terms of the Will. Probate is obtained by making an application to the Supreme Court.
Not all Wills and Estates require a probate: it depends on the nature of the estate, particularly the value of it and whether there is any land in the estate that is not the subject of a joint tenancy. If you are unsure if probate is required, or if you need help in obtaining probate, call us and we can guide you through the process quickly and efficiently.
Q: My family member died without a Will. What happens now? What are “Letters of Administration”?
If a person dies without a Will, they die “intestate”, and the Administration Act 1903 (WA) sets out how the estate is dealt with and who is entitled to any assets.
Someone will need to apply to the Supreme Court to be the administrator of the estate. An administrator is similar to an executor, in that they are responsible for administering the estate as an executor would, except that there is no Will to follow, and instead the law sets out what must be done.
The administrator is usually someone that is entitled to some of the assets of the estate: the Court will generally not appoint another person to be the administrator. If no one who is entitled to some of the estate wishes to be the administrator, then usually the Public Trustee or a private, authorised trustee company is appointed.
The estate cannot be administered without the formal appointment of an administrator by the Supreme Court, reflected in a document called “Letters of Administration”.
The law relating to intestacy often operates in unexpected ways, and an application for letters of administration is more complicated than an application for probate. They are made more difficult to deal with when a loved one has passed away: we can provide you with the right advice to help ease the burden.
Q: What do I do if I’ve been left out of a Will, or if what I’ve been left is unfair or not enough? How do I contest the Will?
Unfortunately, sometimes you find yourself in a situation where you are left feeling confused because you have been left of the Will of someone who you thought you were close to, and whom you anticipated would leave you more than they have.
There are a few steps you can take if you believe you have grounds to contest it and we can help you decide whether you wish to make a claim.
When people talk about “contesting” a Will, they usually mean one of two things. Either:
(a) disputing whether or not the Will is valid; or
(b) even if the Will is valid, claiming an entitlement in the Estate, in addition to anything that the Will might provider (commonly called making a claim for “family provision”).
The main grounds for disputing the validity of a Will is that either:
(a) the person who made the Will was not of sound mind, or otherwise did not have the capacity to make a Will at the time it was made;
(b) the person did not intend the document to be a Will or to have the effect of a Will; or
(c) the person was unduly influenced when making their Will, such that does not represent something that they freely made of their own choosing.
These are complex legal questions which require careful consideration and analysis to answer. If you are considering contesting a Will on these grounds, we can advise you as to the merits of the claim and otherwise the process involved.
For more information about a family provision claim, please see further FAQ entries below.
Q: What is a Family Provision claim?
Unlike a claim disputing the validity of a Will, a family provision claim is not based on a defect in the Will or the way it was made. A family provision claim is based on the Family Provision Act 1972 (WA) (formerly the Inheritance (Family Provision) Act 1972 (WA). That Act provides that:
(a) if an eligible person satisfies the Court that the Will (or the effect of intestacy laws where there is no Will) does not make “adequate provision” for that person for their proper maintenance, support, education or advancement in life, then
(b) the Court may, at its discretion, make an order that provision be made out of the estate for that person, so that they do have “adequate provision”.
What is “adequate provision” will depend on many things, such as the nature and size of the estate, the financial circumstances of the claimant and of all beneficiaries of the estate and whether or not the deceased had a “moral duty” to provide for the claimant. We can advise you as to the prospects of any claim you may be contemplating, and explain how the process works.
Q: Is there a time limit to make a Family Provision claim?
Unless an extension of time is granted (which only happens in limited circumstances), you cannot make a family provision claim if 6 months have passed since a grant of probate or administration was made in relation to the estate.
Q: Who is eligible to make a Family Provision claim?
Under the Act, you can make a family provision claim the following groups can make a Family Provision claim if you fall within one of the following categories:
- A husband or wife of the deceased
- The deceased’s former partner who was receiving or is entitled to received maintenance from the deceased
- A child of the deceased
- A parent of the deceased;
- In certain special circumstances, a grandchild or stepchild of the deceased
- In certain circumstances, a de facto partner of the deceased.
Q: How long does an executor have to settle an estate in Western Australia?
An executor needs to act within a reasonable time, usually within a year of the date of the death, to settle and wind up an estate. However, there are many circumstances which mean that an estate may take longer than this to wind up.
Q: I don’t like what the Executor or Administrator of my friend or family member’s estate is doing. Can I do anything about it?
Unless a Court orders otherwise, an executor or administrator must follow the lawful terms of any applicable Will, and otherwise the law as set out in previous cases and legislation, such as the Administration Act 1093 (WA). If an executor or administrator is breaching these obligations, the Supreme Court can make orders to rectify any breaches, and in certain cases can remove an executor or administrator.
However, the law generally does not require an executor or administrator to follow the wishes of any particular beneficiary, and the executor or administrator is generally expected to act in the best interests of the estate as a whole, subject to any lawful terms of the Will or any applicable requirements of the law of intestacy.
Q: How long does it take for a divorce to be granted?
Before you can apply for a divorce, you have to be separated from your spouse for at least 12 months. This does not mean physical separation, and the Court will consider periods of separation where you remain living in the same home. Importantly, you do not have to be divorced in order to obtain a property settlement.
Once 12 months of separation has passed, you can then lodge an application for divorce. You do not have to obtain your spouse’s agreement to lodge it, but you do have to formally serve it on your spouse after lodgement. Service of a court application usually requires someone else, not you, physically handing it to the person being served.
From the date of lodgement, it usually takes between two to three months to obtain a divorce order, and it then takes a further month for the issued order to take effect and for the divorce to be finalised. However the process is entirely dependent on the level of cooperation from your spouse: whilst your spouse cannot stop a divorce if you meet the legal requirements, they can prolong the process by, for example, avoiding service of the application.
We have years of experience in obtaining divorce orders against spouses that avoid service or otherwise prove difficult during the process. If you believe that your spouse will try to obstruct your application, contact us and we can help streamline the process.
Q: Do I have to wait for a divorce before I can have a property settlement with my former partner?
No, you do not have to wait for a divorce. You can reach an agreement as to property settlement before a divorce order is made, and you can apply to the Court for a property settlement before a divorce order is made.
You only need to show that you and your partner have separated on a final basis. This does not mean physical separation, and you can still be residing in the same home.
Q: How is property split in a separation/divorce?
The way in which property is split after a separation or divorce is different for each couple. During a separation, the couple are expected to try and reach an agreement on how their property will be split, and may seek legal advice and assistance during the process. If an agreement can’t be reached, you can apply for financial orders from a court to decide how property is split.
There isn’t a mathematical formula that is used when determining property division: the Courts have repeatedly emphasised that there is no assumption or default position of a 50/50 split, or that one year of a relationship equals 5% of the assets, or anything like that.
No relationship is identical and what is a fair and reasonable division will depend on the relevant circumstances of that relationship. The Court will take into account considerations like the financial and non-financial contributions of each party to the asset pool and to the welfare of the family, and the future needs of each party.
Unlike in other countries such as the United States, unless there is particularly damaging or extreme behaviour, misconduct during the relationship (such as unfaithfulness) is generally not considered relevant for property division.
With our years of experience in Family Law, we can advise you as to likely outcomes if the Court were asked to determine a property settlement, which you in turn can use as a guide when trying to reach an agreement with your former partner.
Q: My partner and I have split up but we’re not married. Am I still able to have a property settlement?
Even if you were not married to your partner, if you were in a de facto relationship, you may still be able to have a property settlement, in a similar manner that a separated married couple can.
Under section 205Z of the Family Court Act 1997 (WA), which deals with family law property settlements for de facto couples in Western Australia, you may be able to have a property settlement if you have separated from your de facto partner and at least one of the following is satisfied:
(a) that de facto relationship lasted for at least 2 years; or
(b) there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to provide for a property settlement would result in serious injustice to the partner caring or responsible for the child; or
(c) a de facto partner made substantial contributions to the property or welfare of the relationship and failure to provide for a property settlement would result in serious injustice
to the partner.
Whether or not these conditions are met can sometimes be difficult questions, and there are many cases dealing with how the law applies to people in different circumstances. If you are unsure about whether you are entitled to property settlement, we can help.
Q: What is a De Facto relationship?
In Western Australia, a de facto relationship is defined by section 13A(1) of the Interpretation Act 1984 (WA), as a “relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship”.
Section 13A(2) of the same Act explains this further, by listing the following factors which are indicators of a de facto relationship:
(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;(d) whether there is, or has been, a sexual relationship between them;
(e) the degree of financial dependence or interdependence, and any arrangements for financial
support, between them;
(f) the ownership, use and acquisition of their property (including property they own
(g) the degree of mutual commitment by them to a shared life;
(h) whether they care for and support children; and
(i) the reputation, and public aspects, of the relationship between them.
The Act also makes clear that these factors are only indicators, and none of them are essential to having a de facto relationship. This means that, for example, it is possible to have a de facto relationship where 2 people have never resided together, if otherwise all relevant circumstances indicate that the couple are living “in a marriage-like relationship”.
It also does not matter if the parties are of the same sex, or if one of the parties is married to another party.
Q: Are there time limits to property settlement?
Any application for property settlement (including an application for orders by consent, where you and your former partner have agreed a settlement) must be lodged with the Court:
(a) if you were married, within 12 months of the divorce order being finalised; or
(b) if you were in a de facto relationship, within 2 years of separation.
These time limits can only be extended in limited circumstances, but only apply in relation to lodging an application: the application does not have to be determined by the Court within these timeframes.
Q: My former partner and I have agreed a property settlement. Can’t we just sign an agreement or contract? Why do we need court orders?
An agreement between two parties for property settlement is not enforceable by the Court unless the agreement is formalised into:
(a) court orders; or
(b) a Binding Financial Agreement.
Otherwise, the agreement is merely an informal settlement, and the Court is not bound to follow its terms, and either party can later make an application for property settlement in different terms if they are not outside of the time limits.
Further, informal settlements do not provide stamp/transfer duty concessions or Capital Gains Tax rollover relief, which may cost you and/or your former partner tens of thousands of dollars, much more than an application for consent orders would cost.
Q: Is it difficult to formalise an agreed property settlement? Should I use consent orders or a Binding Financial Agreement?
No, it is usually a straightforward and easy process. If the parties agree, court orders can be obtained by consent, using a Form 11 Application for Consent Orders. It does not require an argument before the Court or a formal court hearing with witnesses, examination and so on, and it can be an easy and straightforward process if all of the correct information is given to the Court in the application. The Court will consider the application “on the papers” and if it considers that the agreement is just and equitable pursuant to the relevant law, it can make orders in those terms.
Neither you nor your partner are required to have lawyers or receive legal advice when making an application for consent orders. However, legal advice will ensure that you are making a fully informed decision, and will further ensure that the consent orders reflect the agreement reached and have the effect you want them to have.
The alternative to consent orders is a Binding Financial Agreement. This does not involve any application to the Court, and instead is a written agreement between the separating couple, prepared in strict accordance with the legislative requirements of the Family Court Act 1997 (WA) or the Family Law Act 175 (Cth), depending on whether the parties were married or in a de facto relationship.
If the requirements for a Binding Financial Agreement are not followed, then it is likely to be set aside and be unenforceable. The requirements are technical and strict, and include that each party must receive independent legal advice from a suitably qualified lawyer about the effect of the agreement, and its advantages and disadvantages.
As a result, a Binding Financial Agreement is usually more expensive than an application for consent
orders, and exposes the parties to greater uncertainty than court orders. However, they are sometimes useful in limited circumstances where an application for consent orders may not be suitable.
Q: Are prenuptial agreements always enforceable?
n Australia, a pre-nuptial agreement is simply a Binding Financial Agreement entered into before the parties marry. They can also be entered into before a couple enter into a de facto relationship, and at any time during a marriage or a de facto relationship, not just beforehand.
If properly prepared, the situations in which a Binding Financial Agreement can be set aside and held not enforceable are limited, but they do exist. Examples include, but are no limited to, where there was fraudulent conduct, duress or undue influence. They may also be set aside to the extent that, without spousal maintenance, a person would be unable to support themselves without an income tested government benefit or allowance.
If you are considering entering into a Binding Financial Agreement, or if you are a party to one and are considering whether or not it is enforceable, it is essential that you receive correct and accurate legal advice from experienced lawyers like Ilberys.
Q: Why is a Will important?
A Will is a legal document that details your wishes for the division of your assets when you pass. Not only can a Will help your family through a time of grieving and make it easier for them, it can help ensure your wishes are fulfilled upon your passing.
Without a Will, you are considered to have died “intestate” and your assets are dealt with pursuant to the Administration Act 1903 (WA). That Act sets out how your estate is to be divided between family members, and it may not be in the way you expect.
For example, if you pass away with a spouse and children, your estate does not automatically all go to your spouse, but, depending on its value, is divided between your spouse and your children, even if your children are under 18 years of age. This may mean that your spouse is unable to keep the family home.
Q: How often should I update my Will?
You should review your Will every few years. This will ensure that it’s kept up to date as life milestones are reached. For example, life changes like getting married/divorced, having children or grandchildren and obtaining new assets, investments and a business will all impact your Will. We’re able to assist with small changes to a Will, as well as making an entirely new Will.
Q: What is an executor?
An Executor of a Will is someone who has been nominated to take carry out the terms of the Will and otherwise look after the estate once a person has passed.
Q: How do I contest a Will?
You can challenge a Will if you believe that the person who has passed has not complied with their duty to adequately provide for you upon their death. In order to contest a Will, you need to be able to prove a number of things. These are – You fit into the range of eligible claimants The deceased person was a resident of WA Your claim has been within a 6-month window from the date of issue of Probate (when the court declares that the deceased left a valid Will).