Q & A - Wills and Estate

Q: Do I lose my rights after I have a Power of Attorney?
A:

No. You can still exercise all the rights after appointing your Attorney(s). You can continue to operate your bank account and look after your property while you still have mental capacity.


Q: What can I do if there is a dispute involving in a Power of Attorney?
A:

If the dispute in the Power of Attorney cannot be settled, you can go to either the Civil and Administrative Tribunal or the Supreme Court. They have the power to review enduring powers of attorney. The Supreme Court has the sole right to review certain types of general powers of attorney.


Q: What do I do if I want to make another Power of Attorney?
A:

You must revoke the earlier Power of Attorney, and notify the Attorney in writing about the revocation. You should also give notice of the revocation to anyone who is aware of the earlier Power of Attorney, such as a bank.


Q: If I signed a Power of Attorney in New South Wales, can I use it in another State?
A:

You need to make inquiries about the laws of that other State. Each state has its own laws and regulations in recognising interstate powers of attorney.


Q: How to choose your attorney?
A:

The Attorney should be a person you know well and trust. The Attorney must be over 18 years old. The Attorney must not be bankrupt or insolvent. If your financial affairs are complicated, you should appoint an Attorney who has the skills to deal with complex financial arrangements.


Q: Why would you need a Power of Attorney?
A:

You need a Power of Attorney because the Attorney(s) is/are able to make financial decisions for you when you are not able to. Examples of situations where you cannot make financial decisions include being in another country, or being in a coma, or become ill.


Q: What is an Attorney in a Power of Attorney?
A:

An Attorney is a person who is appointed by the Principal and acts in the best interests of the Principal. The word Attorney in this context does not necessarily mean a lawyer. It can be a friend or a relative.


Q: What is a Principal in a Power of Attorney?
A:

A Principal is a person who is in need of someone else to act for him or her. A Principal must be over 18 years old and must be capable of making his/her own decisions at the time the Power of Attorney is signed.


Q: What is a “Power of Attorney”?
A:

There are two types: the Enduring Power of Attorney and the General Power of Attorney.

Both documents allow you (as the Principal) to appoint one or more persons (as Attorney(s)) to represent you to manage your financial and legal decisions such as buying and selling real estate, shares, operating your bank accounts and spending money on your behalf. You can revoke (or cancel) both documents when you still have mental capacity.

The difference between these two documents is that the General Power of Attorney ceases if you lose your mental capacity, and an Enduring Power of Attorney continues to run if you lose your mental capacity.


Q: What is the role of an executor of a will? If I’ve been appointed as an executor, what should I do?
A:

When someone dies, an executor is the person appointed by the will to administer the estate. Put simply, this involves making sure their debts are paid and that their assets and possessions go where the deceased wanted them to. As executor, the first thing you will need to do is to make a list of everything the deceased owned as well as any payments or assets they were entitled to. Then, you may need to do the following:

  1. Apply for probate;
  2. Pay fees and debts; then
  3. Distribute the assets.

Q: If my Wife or Husband passes away, do I get everything he owns?
A:

It depends on what is written in the Will. If there is no Will, then intestacy rules apply. Two of the rules are as follows:

  1. If the deceased leaves a spouse but no children, the spouse is entitled to the whole of the estate.
  2. If the deceased leaves a spouse and children and the children are all also children of the spouse, the spouse is entitled to the whole of the estate.

Q: Who can make a will?
A:

At common law, the testator must:

  1. Be of sound mind, memory and understanding.
  2. Know and approve of the contents of their will.
  3. Intend the document to constitute their will.
  4. Not being acting under the undue influence of another.
  5. Not be acting as a result of fraud.

A will made by a minor is not valid unless the minor meets some special requirements in the Succession Act.


Q: What are the requirements for a valid will?
A:

According to the Succession Act 2006 (NSW), a valid will must satisfy the following requirements:

  1. the testator must be over 18 years old and of full legal capacity and good state of mind;
  2. the will must be in writing;
  3. the testator must sign the will in the presence of at least two witnesses or direct someone to sign the will in the presence of at least two witnesses;
  4. the testator’s signature must be made or acknowledged in the presence of two or more witnesses, present at the same time;
  5. the two witnesses must attest and sign the will in the presence of the testator;
  6. the testator’s signature must be made with the intention of executing the will.

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