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John Melis, Expert
Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.
John Melis, Expert
I kindly request that you please clarify your question?
John Melis, Expert
Regard to your particular situation, the following information explains situations concerning the last will and testimony and power-of-attorney.
I do suggest that you engage a local lawyer to assist you with these particular documents. Alternatively you may reach out to the state trustees who can also assist in these documents as well
The Last Will & Testament is a very important document, and every person over the age of eighteen years should have one professionally drafted by a lawyer. There are numerous formalities that need to be complied with to ensure the Last Will & Testament is valid. However, the first step before the will formalities can be completed, is to have a properly drafted will.
It is important to keep in mind that every persons circumstance is different, and having a Last Will & Testament professionally drafted by a lawyer is important to respect and secure the will makers legal rights and to avoid the will being contested in the future.
The pen is mightier than the sword and history supports the same, so make the last words count.
You can either draft your own will, or use a free online will or engage a lawyer to draft a will for you.
You may also call the state trustees to use the free will template too .
An example of a Last Will & Testament follows:
THIS IS THE LAST WILL AND TESTAMENT of me ***** ***** of*****Sydney, New South Wales 2000.
1. I HEREBY REVOKE all former wills and testamentary dispositions previously made by me AND DECLARE this to be my last will and testament.
2. In this will the word ‘children’ includes child and the word ‘spouse’ includes de facto or domestic partner.
3. Where any gift herein is made to a person who does not survive me for a period of 30 days the gift is to be treated as if that person died before me.
4. In this will any gift which depends on the beneficiary surviving me by a specified period or attaining an age does not vest unless the beneficiary so survives or attains the age specified. Income produced by the gift after my death and before vesting accumulates to the gift.
5. I APPOINT as my executor and trustee ***** ***** unless unable or unwilling to act or continue to act in which event I APPOINT JACK LU AND I DECLARE that the expression ‘my trustees’ when hereinafter used and where the context permits shall mean and include the executor or executors and trustee or trustees for the time being of my will whether original, surviving, substituted or additionally appointed.
6. Gifts to my trustees are not dependent on them acting as executors or trustees and they may apply to the court for commission.
7. All digital rights, accounts, assets, and device content which is not otherwise personal property or the subject of a specific bequest, shall form part of the residue of my estate and my executor is empowered to deal with these assets.
8. My trustees hold my estate on trust:
(a) To sell, call in or convert into money any part of my estate and pay any and all death, estate or succession duties, debts, legacies, funeral and testamentary expenses and any other costs, fees or expenses associated with my death or the administration of my estate;
(b) To give to ***** ***** Green the sum of $25,000 provided she survives me and if not this gift shall form part of the rest and residue of my estate;
(c) To give to HALEY APPLETON my art collection of paintings provided she survives me and if not this gift shall form part of the rest and residue of my estate;
(d) To do all things necessary to enable ***** ***** to have the use and enjoyment of all digital rights, accounts, assets, and device content;
(e) To give the rest and residue of my estate equally between such of my three children, LUKE YOUNG, JESS LONG, KATE YOUNG who survive me and attain the age of 18 years provided always that should any of them not survive me to take under this my will leaving children who survive me and attain the age of 18 years then such children shall take by substitution and if more than one equally the share in my estate which their parent would otherwise have taken.
9. My trustees may in their discretion:
(a) Exercise any powers given to them by law and have all the powers, authorities and discretions of a natural person, including but not limited to the power to invest and change investments freely as if they were beneficially entitled to them;
(b) Apply for the maintenance, education, including travel to broaden the mind, advancement or benefit of a beneficiary the whole or any part of the capital and income of that part of my estate to which the beneficiary is entitled or may in future be entitled;
(c) Make a payment or payments to a minor beneficiary’s parent or guardian or a person with whom the minor beneficiary resides and accept the receipt of that payee as an absolute discharge;
(d) Make loans to beneficiaries on whatever terms;
(e) Acquire or lease property for occupation, use or enjoyment by a beneficiary, whether alone or with some other person or persons;
(f) Sell, lease, exchange, transfer to a beneficiary or otherwise dispose of property in my estate in the terms they consider expedient as though they were absolute beneficial owners;
(g) Without the consent of any beneficiary, appropriate any assets of my estate at their value in or towards the satisfaction of a legacy or a share of any person in my estate;
(h) Do all such acts and things in relation to the affairs of any company in which my estate is or may become interested or concerned;
(i) Borrow money, either with or without giving security, and enter into any mortgage, charge, security agreement, lien or security over any part of my estate;
(j) Maintain, repair, improve, develop, alter, renovate, pull down, erect or re-erect any part of my estate;
(k) Maintain, take out or participate in any policy of insurance or superannuation scheme;
(l) For any reason, for instance to allow an early distribution of residue, set aside out of my estate a fund sufficient to meet all debts, charges, taxes and other liabilities of my estate;
(m) Carry on, either alone or in partnership with any person or persons the whole or part of any business in which I am engaged or interested at my death until such time as administration of my estate is finalised, and in this respect I direct my trustees to apply for a grant of letters of administration in order to get in the goods, pending a grant of probate, if necessary;
(n) Enter into a formal trust deed in order to provide for any trusts created by this my will, including the power to appoint any additional trustees and any costs, fees, duties or other expenses consequent upon the establishment of such trust deed shall be borne by my estate; and
(o) Hold all or part of any superannuation death benefits paid to my estate in a separate superannuation proceeds trust upon and subject to the rights and powers herein created for any of the beneficiaries under this my will who qualify as death benefit dependants pursuant to the Income Tax Assessment Act 1997 in such proportions as my executors may determine provided that my estate is divided between all the beneficiaries of my estate in the proportions that accord with my wishes expressed herein.
Dated the 22 day of February 2016
Signed by Testator and Witnessed in accordance with the regulations.
The Last Will & Testament is one of the most important documents for a person and should be updated on a regular basis with the changes of life events. Using a lawyer to both draft the document and make necessary additions, amendments, or even drafting a new will is a prudent protection method to secure the will makers last rights.
Enduring power of attorney
Powers of attorney are legal documents that let you appoint someone who can:
If you appoint a substitute decision maker, their decisions will have the same legal force as if you had made them.
You can made a power of attorney if you are an adult and have decision-making capacity to do so.
You can only make a power of attorney for yourself. You cannot make one on behalf of someone else.
The most important decision if you make a power of attorney, is who you choose to appoint.
Enduring power of attorney
If you make an enduring power of attorney, you appoint a substitute decision maker.
If you make an enduring power of attorney, the power endures (continues) even when you cannot make decisions due to an injury or illness.
Making an enduring power of attorney is one way of planning for the future. By making an enduring power of attorney, you can choose who will make important financial and personal decisions for you, such as where you will live or what happens to your house, if you are unable to do so in the future.
People plan for their future in many ways. Making an enduring power of attorney is one way of planning for the future.
Everyone has the right to make their own decisions. However, anyone can experience an injury or illness that means they are unable to make decisions, either temporarily or permanently. By making an enduring power of attorney, you can choose who will make important financial and personal decisions for you, such as where you will live or what happens to your house, if you are unable to do so in the future.
An enduring power of attorney is a legal document that lets you appoint someone (an attorney) to make certain decisions for you. The power endures - or continues - if and when you are unable to make decisions.
You can make an enduring power of attorney if you are aged 18 years or older and have decision-making capacity to do so.
You can only make an enduring power of attorney for yourself, you cannot make one on behalf of someone else.
Your attorney cannot make medical treatment decisions for you unless they are also your medical treatment decision maker.
You need to sign the form in front of two adult witnesses.
One must be:
The Department of Justice & Regulation website has a full list of people who can witness affidavits.
Neither witness can be:
See what these words mean for the definitions of ‘relative’, ‘care worker’ and ‘accommodation provider’.
Your attorney(s) sign a statement of acceptance before a witness
After you have signed the form in front of witnesses, each of your attorneys and alternative attorneys must sign a statement of acceptance in front of a witness.
Storage and certified copies
Your completed document is not registered in Victoria. You should keep the original in a safe place and give your attorneys certified copies, or make sure they know where to find a certified copy when they need it.
General non-enduring power of attorney
The general non-enduring power of attorney is mostly used for a specific purpose and a fixed period of time. It is not enduring.
For example, you may chose to make a general non-enduring power of attorney because you are overseas for a period of time and want someone else to make financial decisions for you during this time.
A general non-enduring power of attorney is a legal document where someone appoints one or more people to make financial decisions for them. Financial matters include dealing with legal issues that relate to the person’s financial or property affairs.
People make general non-enduring powers of attorney because they are unavailable or want assistance to manage their financial affairs. General non-enduring powers of attorney are often used for a specific purpose and for a fixed period of time. For example, someone needs another person to run their business while they are overseas so they make a power for the period that they are away.
A general non-enduring power of attorney is not for future planning. If the person who made the power at a future point in time does not have decisions making capacity for the relevant financial matters, a general non-enduring power of attorney does not operate. And the attorney cannot make decisions during this time.
The general non-enduring power of attorney appointment form
Two versions of the general non-enduring power of attorney appointment form can be found here (see right menu).
The shorter version of the form is can be used where no alternative attorneys are being appointed. Both versions of the form have space for the appointment of up to two attorneys.
A person who wants to limit or place conditions on how their attorney(s) carries out their responsibilities or wants to make a general non-enduring power of attorney for their particular circumstances should seek legal advice.
Copies of a general non-enduring power of attorney can be certified by:
See the Department of Justice & Regulation website for a list of people authorised to administer an oath.
At the bottom of each page (except the last page) of the copy the person should certify that:
‘This is a true and complete copy of the corresponding page of the general non-enduring power of attorney made by __ (insert principal’s name ) on ‘ (insert date made).
On the last page of the copy the person should certify that:
‘This is a true and complete copy of the general non-enduring power of attorney made by __ (insert principal’s name ) on ‘ (insert date made).
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