The Estates Solicitors at Hatzis Lawyers Sunnybank Hills advise that a statutory Will is a Will made by the Supreme Court for a person who does not have capacity to make a Will.

Those persons can include minors, those with disabilities (whether they are minors or adults) and those with impaired capacity (ie those reaching the later stages of life).

Generally, statutory Wills are applied for when the intestacy rules provide for an outcome that is not desirable.

If you would like more information regarding applying for a statutory will for a relative, please ring our Estates Team on 1300 428 947 or email us at estates@hatzis.com.au.

What is a Testamentary Guardian?

A Testamentary Guardian is a person appointed by you in your Will to have the rights and responsibilities as that of a parent for your child.

Who can appointment a Testamentary Guardian?

Any parent or guardian may appoint a guardian for a child who is under the age of 18.

How is the appointment of a Testamentary Guardian made?

An appointment of a Testamentary Guardian is made through your Will.

When does the appointment take effect?

The appointment takes effect either:
1. on both parents’ death; or
2. on the first parents’ death if specifically stated in the Will that the remaining parent and appointed guardian are to act jointly.

What decisions does the Testamentary Guardian make?

The Testamentary Guardian has the power, rights and responsibilities for making decisions about the long-term care, welfare and development of the children.

This includes:

• education;
• religious upbringing;
• decisions as to medical treatment;
• applying for the child’s passport;
• consenting to the child’s marriage;
• commencing legal proceedings on behalf of the child;
• appointing a guardian for the child in the event of the guardian’s death;
• rights to bury the child should the child die; and
• agreeing to the child’s adoption.

The Testamentary Guardian does not automatically have the right for the “daily care” of the child. The Testamentary Guardian only has this right if the child has no surviving parent and there are no court orders (such as a Family Court order) in place giving daily care to another person.

Who do I choose to be Testamentary Guardian?

The decision as to who you should appoint to be the Testamentary Guardian of your child is a decision that only you can make. Some factors to take into consideration should be as follows:

• Does the person have a good relationship with the child?
• Is the person a similar age to you?
• Is the person capable of caring for your child until they turn 18?
• Is the person willing to be the guardian of your child?

You should ask the guardian before appointing them.

Will the person raise your child how you would like your child raised?
Does the person have the same religious beliefs as you?
Does the person have the same discipline beliefs as you?
Is the person living in the same location as you?

If you appoint a guardian in another area, State or country, then the child could be uprooted to live with the guardian.
Is the person financially stable?

Does the person have a good relationship with the person you have chosen to be executor?

We generally recommend that your executor and Testamentary Guardian be different persons because a conflict of interest may arise if the same person is appointed in both roles. This conflict of interest can arise because the executor has the discretion to pay money to the Testamentary Guardian for your child’s education, maintenance, development and support in life. If they are the same person, there is no-one to ensure that the money used for your child’s welfare is being utilised appropriately.

Can I appoint more than one Testamentary Guardian?

Yes you can appoint more than one however they will act jointly so they must make any decisions together. If there is a disagreement then this may cause distress between the guardians and/or the child. You may also like to consider appointment one guardian but an alternative should that guardian be unable or unwilling to act as guardian in the future.

Can my appointment of a Testamentary Guardian be challenged?

Yes. If there is a surviving parent, then the surviving parent can apply to the Supreme Court to have the guardian’s appointment suspended or removed. If both parents have died, then anyone who wishes to challenge the Testamentary Guardian must apply to the Family Court.

If no challenge is mounted in either court then the appointment of the Testamentary Guardian is binding.

You can make a Will at any time.

If you do not already have a Will, you should think about making one as soon as possible.

If you have bought a property, you should think about making a Will or updating your existing Will.

If you are in a relationship that breaks down, or if there are other significant changes to your circumstances you should check whether your Will needs to be changed.

A Will is an important legal document that includes:

• Who is to get what part of your estate when you die;
• Who is to be your executor;
• Who is responsible for your funeral arrangements;
• Who is to be the guardian of any children.

If you do not have a Will then your estate may well be divided contrary to your wishes.

For example:

If you are married or in a defacto relationship (including a same sex defacto relationship) and die without a Will, then your spouse or defacto partner and, if applicable, any children will share your estate in prescribed shares.

These shares may be contrary to your wishes and may in fact cause hardship to your spouse or partner depending on the circumstances;

If you are in a defacto relationship (including a same sex defacto relationship) your partner will have to prove your relationship to be entitled to a share of your estate. The relationship must have existed for at least two years or meet specified criteria.

These are all things your partner would have to be able to prove to a Court to be entitled to a share of your estate;

If you are not in any relationship, your estate is divided amongst your family as prescribed by law.

For all of the above, your spouse, defacto partner or family would have to make a costly application to the Court to be able to administer your estate. If you have a Will an application to the Court is often not necessary.

Not having a Will may cause your spouse, defacto spouse, family or friends considerable difficulty and expense at a time of profound loss and grief. Making a Will makes the financial aspects of your death much easier for your spouse, defacto spouse, family or friends to manage.

For a Will to be valid, particular legal requirements must be met.

Thus it is preferable to see a solicitor when you prepare your Will.

The solicitor will ensure that your wishes are expressed in the correct legal terminology.

The information your solicitor will need includes:

  • Your full name, address, and occupation;
  • The full names and addresses of your executor(s);
  • Any specific bequests you wish to make and who is to receive your residuary estate;
  • The full names and addresses of all the people who are to receive a specific bequest or part of your residuary estate;
  • Any directions you would like to make about your funeral arrangements;
  • The full names and addresses of any guardians of any children;
    The name and membership number of your superannuation fund.

Under Queensland law when you appoint a guardian in a Will, that person or people have priority over everyone except a surviving biological parent to act as guardian.

When you appoint a guardian you:

Make sure your children are cared for by people selected by you;
Reduce the chances of disputes between relatives about who should care for your children.

Usually, your signed Will is kept at your solicitor’s office or in a safe custody packet at a Bank.

Once you have signed your Will, notify your executor(s) that you have made a Will and that they are the executor(s).

Also tell your executor(s) where your Will is being kept in safe custody.

The Estates Solicitors at Hatzis Lawyers Sunnybank Hills advise that a Testamentary Discretionary Trust is a special form of trust incorporated in your Will.

It is similar to a family trust but only comes into effect on your death.
There can be significant tax advantages for implementing a testamentary trust in your Will if there are minor beneficiaries (such as children and grandchildren).

In addition to the possible tax advantages, there can be significant asset protection advantages for your family when making your will which we can discuss with you.

If you would like more information regarding implementing a testamentary discretionary trust within your Will, please ring our Estates Team on 1300 428 947 or email us at estates@hatzis.com.au.

The Estates Solicitors at Hatzis Lawyers Sunnybank Hills advise that superannuation does not automatically fall within your estate assets available for distribution pursuant to your Will.

This is because the trustee of the superannuation fund has the discretion to pay your superannuation entitlements including any related insurance policy, together known as your “death benefit” to your dependents under the contract of insurance.

Some superannuation companies allow members to make nominations as to who the death benefit should be paid to.

“Non-binding” nominations are essentially your “wish” as to where you would like your death benefit to be paid.

“Binding” nominations are binding on the trustee and removes the discretion from your superannuation trustee. There are strict rules in respect of binding nominations with most lapsing to non-binding nominations after three years.

There are also strict formal requirements that must be met for a binding nomination to be valid such as being witnessed by two adult witnesses.
You should speak with your Financial Adviser to ascertain whether they will accept a binding nomination.

If you would like more information regarding superannuation and your estate planning, please ring our Estates Team on 1300 428 947 or email us at estates@hatzis.com.au.

Special trusts for relatives with disability

If you have a child or relative you care for with a severe disability then you may be interested in setting up a special kind of trust to assist them with their care and accommodation needs.

Since September 2006, it has been possible for relatives to set up what is known as a “Special Disability Trust” (“SDT”) which can be set up either now or incorporated within your Will to commence operation on your passing.
The funds within the SDT are to be used for your child or relative’s care and accommodation needs and a maximum yearly allowance for general living and other expenses.

The uniqueness of this form of trust is that if assets are below a certain threshold then they will not impact on Centrelink and/or Veteran Affairs’ entitlements.

In certain circumstances, it will also not affect their entitlement to public housing or assistance package entitlements. In addition to these benefits, any income earned on the assets within the trust, will also not affect their Centrelink and/or Veteran Affairs’ entitlement, subject to conditions.

If you would like to discuss the possibility of setting up a Special Disability Trust, please contact our Estates Team to arrange an appointment.