‘Tis the Season to Update Your Will and Enduring Powers of Attorney

By Andrea Olsson, Senior Associate, MST Lawyers

Your Will and Enduring Powers of Attorney are a snapshot of your present intentions and should be reviewed regularly to ensure that your current familial situation and asset base is documented accurately.  The documents ensure that your assets pass to those you intend, and the person you nominate deals with your affairs. Without legal estate planning documents, the courts will be forced to make decisions which may not line up with your intentions. 

The case of Kelsall [2016] is a perfect example of how a well thought out Will or codicil could have avoided costly litigation surrounding issues of asset distribution. When Mr Kelsall died in January 2015 he had a Will which had been prepared in September 2010 and a further informal document, prepared in February 2014, amending the Will.  This document was not prepared by a lawyer and signed in front of only one witness. The informal codicil dealt with, amongst other things, a share portfolio valued in excess of $5.5 million.  In his Will, Mr Kelsall divided this significant share portfolio equally among his five siblings. The informal document attempted to amend the Will to leave the portfolio to his wife.  A dispute arose as to whether the informal document was a properly executed Codicil and therefore amended the Will.  

The matter was heard in the Supreme Court by Her Honour Justice McMillan who held that the informal codicil was invalid. It was deemed that the document and the preparation thereof did not comply with the requirements to make it a valid extension of the original Will.  Therefore the significant share portfolio was to be divided among Mr Kelsall’s siblings and not to be paid to his wife. 

This case demonstrates the importance of having an effective Will to distribute assets in the way that you wish, rather than relying on informal documents which may impair the administration of the estate and result in your executors not being able to follow your wishes.  In this case, the informal document also resulted in expensive litigation.

Our Wills & Estates team can assist you in preparing a Will to suit your individual circumstances.  You may also consider making a Power of Attorney to appoint someone to make financial, legal, and medical and lifestyle decisions on your behalf if you are incapable of making those decisions yourself.

If you require assistance on making a Will or any other estate issue you can contact our Wills & Estates lawyers by email phone +61 3 8540 0200.