Wills & Estate Planning

We prepare wills for clients ranging from young families making their first will, to retirees revising a long-standing plan, to business owners with complex affairs. Every will must comply with the formal execution requirements of the Wills Act 1997 (Vic): in writing, signed by the testator (or by someone in their presence at their direction) in the presence of two adult witnesses who attest and sign in the presence of the testator and each other. The will must also reflect the testator's testamentary capacity and free will at the time of signing.

Drafting choices that matter include the appointment of executors (and substitutes), the use of specific gifts versus a single residuary clause, the treatment of debts and taxes, the appointment of guardians for minor children, and the drafting of any testamentary trust. For clients with adult children whose circumstances differ markedly, or for blended families, we also document the reasons for any unequal provision — material that may later be used to defend the estate against a TFM claim.

Under the Powers of Attorney Act 2014 (Vic), an enduring power of attorney can cover financial matters, personal matters or both, and continues to operate after the principal loses decision-making capacity. We advise on the choice of attorney (sole, joint, joint and several, or successive), the conditions and limitations to impose, and when the power should commence. The document must be executed in front of two witnesses, one of whom must be authorised to witness affidavits; defects in execution can render the appointment invalid at the very moment it is needed.

Medical decisions are governed by a separate appointment under the Medical Treatment Planning and Decisions Act 2016 (Vic) — a financial-and-personal enduring power of attorney does not authorise medical treatment decisions. We prepare the appointment alongside the will and enduring power of attorney, and where appropriate prepare advance care directives, including instructional directives that are legally binding on treating clinicians.

Superannuation is not an estate asset and is not governed by the will. It is paid by the trustee of the fund in accordance with the trust deed and any binding death benefit nomination the member has made. For most clients the superannuation balance is one of the largest pools of capital they will leave behind, and getting the nomination right (or deliberately leaving the trustee with discretion) is a critical part of the estate plan. We coordinate with the client's financial adviser to ensure superannuation arrangements align with the will.

A testamentary trust is a discretionary trust created by the will that takes effect on the testator's death. The two main uses are tax (income distributed to minor beneficiaries is taxed at adult marginal rates rather than penal minor rates, which can be significant where children inherit substantial assets) and protection (a beneficiary in vulnerable circumstances — bankruptcy, family law dispute, addiction — can be provided for through the trust without the assets vesting in them personally). Testamentary trusts add complexity and ongoing cost and are not appropriate for every estate; we advise on whether the benefits justify the structure for your particular circumstances.

Estate planning for clients with operating businesses, family trusts or private company shareholdings requires careful alignment of the will with the underlying corporate and trust documents. We work with the trust deed to ensure control passes as intended, prepare shareholder agreements and buy-sell arrangements that take effect on death, address control of the appointor role in family trusts, and consider the small business CGT concessions and the death rollover under the Income Tax Assessment Act 1997 (Cth) on any transfer of business assets. Our combined commercial and estate capability is particularly suited to this work.

No will is challenge-proof — eligible persons can bring a Part IV family provision claim regardless of what the will says. But the risk and quantum of a successful claim can be meaningfully reduced by careful drafting: recording reasons for any unusual provision in a separate statement of testamentary intention, structuring assets so significant value passes outside the estate (such as through superannuation nominations or jointly held property), and considering testamentary trusts where appropriate. We discuss these strategies openly and honestly at the instructions conference.