Wills & Estates
Wills & Estates

Death is one of those certainties in life that, while unpleasant to think about, should be given some thought and planning. Our lawyers have experience in all aspects of Will drafting, estate planning and probate.


A Will is a document in which you outline what it is you want done with your property, both real and personal, after your death. To be valid, a Will must be in writing and properly witnessed. You will also need to decide who you want to be the executor. The executor is responsible for gathering and distributing your assets in accordance with your instructions. They have duties to the beneficiaries in your Will (those you are leaving gifts to) and you should choose somebody you trust for this role.

If you do not have a Will, instead of seeking a grant of probate, your next of kin will have to apply for letters of administration. That process is a little more cumbersome and so, although drafting a Will may take some thought now, it means that the process will be much easier for your loved ones when you are gone. Having a Will also helps to ensure that your hard-earned assets are distributed according to your wishes.

Power of Attorney and Enduring Guardianship

A Power of Attorney is a legal document that gives a person (or organisation) the authority to make financial and legal decisions on your behalf while you are still alive. You may want to prepare a Power of Attorney in case you lose capacity and are not able to make your own decisions, or you may simply want one for a short period of time, for example, if you are overseas or in hospital and are not able to manage your own affairs.

An Enduring Guardian is a person appointed to make lifestyle and health decisions on your behalf when you are not capable of making them for yourself.

It is important to seek legal advice before entering either of these arrangements.

What are my duties as executor of an estate?

If you have been chosen by a family member or friend to be an executor, this means that you will have the legal responsibility of managing their estate according to the terms in the Will. Executors have several duties and are usually guided by a lawyer who can help them identify and collect the deceased’s assets; liaise with other parties like banks, fund managers, insurance companies, agents, and valuers; apply for probate if needed; and distribute assets to beneficiaries. A lawyer can also provide valuable advice to an executor to help minimise any exposure to liability and to deal with any disputes or hurdles along the way.

Obtaining Probate

A Grant of Probate is an order issued by the Supreme Court that confirms the validity of a Will. Once probate is granted an executor can begin administering and distributing assets in accordance with the provisions in the Will. The executor may gather assets, settle the estate’s debts, pay the appropriate fees, distribute the assets to the intended beneficiaries and finalise the estate.

If it is necessary to obtain a Grant of Probate, an application with supporting documents must be made to the Supreme Court of New South Wales.

Estate Disputes

Legal disputes can be stressful and estate disputes are no different. Sometimes these disputes arise because somebody feels that they have been left out of a Will or not been left what they think they deserve. Other times, the dispute arises because somebody thinks that the Will isn’t real, or there was some pressure on the testator to make certain gifts.

Family Provision Claims

If you believe that you should have received a distribution from someone’s estate and did not, or you received an inadequate share in the circumstances, you may be eligible for a family provision order. A family provision order allows certain people to receive a share or greater share from the estate although it was not provided for in the Will. The court will consider several factors including your relationship with the deceased, and whether the deceased had any obligation or responsibility to provide a distribution for your maintenance, education or advancement in life. Strict time limits apply so it is important to obtain legal advice quickly if you intend pursuing a family provision claim.

Regardless of how a dispute starts, or whether you are a beneficiary or an executor, obtaining the right representation to guide you and protect your interests is essential. If you find yourself in this situation, or need help with planning your estate, speak with one of our experienced lawyers today.

If you need assistance, contact us at [email protected] or call 02 6964 9343 for expert legal advice.