Wills and Estates
A will is a written document that sets out how you want your assets (your estate) to be dealt
with after you die. The law about wills affects people when they make their own will and when
they are managing the affairs of someone who has died. In both cases, there are many legal
requirements to be met.
Who can draft a will?
There are no formal requirements about who can draft a will. You can write one yourself or
engage a professional to do it for you. However, the will must conform with specific
requirements to be considered a valid will, otherwise your executor may have difficulties when
applying for probate. For this reason, it is recommended that you use a lawyer or your State
Governments Trustee and Guardian i.e. the NSW Trustee and Guardian.
It is important to note that the NSW Trustee will only draft your will if you agree to appoint it to act as the executor of your estate. In this case, although they will draft your will for free, they will charge for the administration of the estate which could be thousands of dollars. These costs are in addition to the costs for applying for a Grant of Probate.
If you wish to appoint your own executor, you should either draft your own will or use a lawyer.
For a will to be valid, it must comply with strict legal requirements which are found in section 6 of the Succession Act 2006. A will is NOT valid unless:
It is in writing;
It is signed by the will-maker in the presence of two or more witnesses who also sign in the presence of the will-maker and each other; and
The will-maker intended the document made to be a will.
Where a beneficiary to the will acts as a witness, any beneficial gift to the beneficiary (or possibly his or her spouse), will be void at common law. This is called the witness beneficiary rule. In most jurisdictions, the gift can be saved if there are two other witnesses or the court is satisfied that the will-maker intended the gift to be made, or anyone who would otherwise lose out agrees that the gift should still go to the witness beneficiary.
In an effort to save money, some people use an Australian Will Kit, usually purchased from the Post Office. Many disputes however are caused by the use of these kits because the will is not drafted properly to protect the beneficiary entitlements and/or the instructions on how the assets are to be dealt with are confusing and unclear.
Another consideration is asset protection. If this is important to you, a simple will is not the answer. At Sapphire Legal, we can customise your will to include testamentary trust mechanisms. Whether to protect assets from potential family law disputes, minimise income tax, capital gains tax (CGT) and other tax leakage or allow for the preservation of welfare entitlements for a beneficiary who suffers from a special disability, flexible mechanics for allocating and distributing your estate can be included in your will.
Smarter estate planning is not just for the wealthy. Even if all you own is your house, a will that includes testamentary trust mechanisms can offer significant advantages.
A simple will is one that does not include testamentary trust mechanisms. Even if this is all you require, it is important to ensure that it conforms with the statutory requirements for a valid will.
At Sapphire Legal, we offer our clients the ability to customise the will of their choosing via our online services. Whether you prefer a simple will or a will with testamentary trust mechanisms, our documents have been meticulously designed in consultation with leading Australian estate planning experts so you can be assured that the document you receive is valid. We will also review your will and make any changes in consultation with you as you require.
When a person dies, there are a number of enquiries the executor, family members or close friends will need to make in relation to the person’s estate. One of the first things that must be done is locating the persons will. If no will is found, it is usually presumed that the person died without a will (intestate).
Probate is an order from the court stating that the will is valid. It clears the way for the
executor(s) to be able to administer the estate.
Under section 8 of the Succession Act 2006, a document that appears to contain the
deceased wishes, even if it is not executed in accordance with the formal requirements,
may still be considered to be their will, if the court is satisfied that this is what the person
If you are not sure whether a document is a valid will, we can review the document for you.
Applying for a grant of probate
If there is a will and an executor, formal administration will involve the executor applying
for a grant of probate from the Equity Division of the Supreme Court. This will require the
executor (or their lawyer) to file certain documents with the court. Fourteen days before applying for a grant of probate, it will also be necessary to publish a notice indicating the intention to apply for probate. This notice can only be published on the Supreme Court online registry.
The minimum documents required for applying for a grant of probate are:
A summons, signed by the executor or their lawyer;
An affidavit of executor which includes:
a. A statement as to whether the deceased person left any other document attempting to set out their testamentary intentions;
b. The date the online notice was published;
c. Details of all assets and liabilities of the estate;
d. A copy of the death certificate;
e. A statement that the executor will administer the estate according to law;
f. A statement that there is no reason why the executor should not be granted probate of the will.
Letters of administration
If there is no will or no executor to a valid will, it will be necessary to apply for Letters of Administration. In such a case, the estate will be distributed in accordance with Chapter 4 of the Succession Act 2006. This is commonly known as the intestacy rules. These rules will set out who will be entitled to inherit from the estate and how the assets will be distributed.
Letters of Administration, may be applied for by someone who is entitled to either the whole of the estate of a share of it. Ordinarily, this is a family member i.e. spouse, sibling or adult child of the deceased. If there is no next of kin, or no one considered appropriate or willing to apply for the grant, then the court may grant administration to either the NSW Trustee & Guardian or any other person the court deems suitable.
For obvious reasons, it is preferable that you make a will so that you can decide who you want to leave your estate to rather than allow the intestacy rules to decide for you.
Applying for Letters of Administration
Similar to applying for grant of Probate, you must first publish a notice of intended application on the Supreme Court Registry at least 14 days before applying for letters of administration.
The minimum documents required for applying for letters of administration are:
Summons for Letters of Administration (or Letters of Administration with the will annexed if a valid will does exist);
A Grant for Letters of Administration (or Grant for Letters of Administration with the will annexed);
Affidavit from the Administrator (the persona applying for the grant) that annexes the assets and liabilities of the Estate;
The original will, if it exists;
If there is more than 1 person who is entitled to a share in the estate but are not joint applicants, a Consent of Administration from each of those persons entitled to a share in the estate.
If you are the de-facto partner of the deceased, you will also need to include evidence of your relationship with the deceased. If you were married to the deceased, your relationship is automatically recognised.
Letters of Administration need to be applied for within 6 months from the date of death. If you apply after 6 months, you will also need to file an Affidavit of Delay with your application.
The costs of obtaining Grants of Probate or Letters of Administration will depend on the size of the estate. The Legal Profession Uniform Law Application Act 2014 (NSW) and Schedule 3 of the Legal Profession Uniform Law Application Regulation 2015 regulates these costs by using a scale. At Sapphire Legal, our professional fees are fixed in accordance with Schedule 3.
The current scales of regulated costs include:
Instructions on obtaining a grant of probate or letters of administration;
Attendance to verify details of assets as supplied by the executor (where required);
Preparation of court documents;
Attendance on executor/applicant to sign;
Answering requisitions from the court (if required);
Perusing grant or letters of administration and advising executor/administrator.
Please note that this scale does not include disbursements i.e. valuation fees, advertising costs and filing fees and matters relating to the administration of the estate itself. These costs would be in addition to the statutory legal costs for apply for Grants of Probate or Letters of Administration.
Current filing fees for Probate in NSW as of July 2021 are:
For estates valued at less than $100,000, no filing fee applies;
For estates valued between $100,000 and $250,000, the filing fee is $772.00;
For estates valued between $250,000 but less than $500,000, the filing fee is $1,048.00.
For estates valued between $500,000 but less than $1,000,000, the filing fee is $1,607.00.
For estates valued between $1,000,000 but less than $2,000,000, the filing fee is $2,141.00.
For estates valued between $2,000,000 but less than $5,000,000, the filing fee is $3,568.00.
For estates valued at $5,000,000 or more, the filing fee is $5,948.00.
As a general rule, the courts filing fees increase each year.
The court recognises the freedom of testation, that is, the right of a person to decide
how they wish to gift their estate. In some instances, the court may be asked to intervene
and overrule the testators wishes in what is called a Family Provision claim.
Eligibility to make a claim for a family provision order is dependent upon the claimant
meeting any one or more of the eligibility requirements in section 57 of the Succession
The court’s jurisdiction to hear a family provision claim will only be enlivened if the
claimant can establish ‘eligibility’ to make a claim. Accordingly, even if a claimant has a
compelling moral claim upon the deceased estate, a court must dismiss that claim if the
claimant does not establish eligibility.
A further requirement to be met is proof that the applicant has been left without adequate provision for maintenance, education and advancement in life. If the court forms the view that the deceased still had a moral duty to make provision for the applicant, it will more likely than not grant a family provision order. In answering this question however, the value of the estate will be considered in light of all events in life and the needs of the other beneficiaries.
The relationship between the deceased and the applicant will be put under the spotlight. For example, an adult child who was adequately provided for before the deceased passed away or who behaved badly towards the deceased whilst they were alive, will need to convince the court why they should now be entitled to anything from the estate.
If you are considering making a family provision claim or you are the Executor or Administrator defendant to a claim, please contact Gayle at Sapphire Legal to make an appointment.
Can I do my own power of attorney in NSW?If you'd like Sapphire Legal to make your Power of Attorney document, you can begin the process, online. After you've filled out and submitted the online form, we’ll contact you, and arrange a time to finalise the documentation.
Does my attorney override my will?No. Your attorney can not change an existing will, or give instructions to make a will on your behalf. Therefore it is so important that you prepare your Last Will and Testament whilst you still have mental capacity to do so. Once done, you can include a condition in your power of attorney that requires your attorney to acquaint themselves with your Will and Testament and request that, to the extent practicable, they do not make any decisions that may cause a gift under your will to fail.
What is the difference between power of attorney and Enduring Power of Attorney in NSW?A General Power of Attorney can no longer be used once a person loses capacity such that they are unable to make decisions or act on their own. This is where an Enduring Power of Attorney comes in. An Enduring Power of Attorney can be used when a person has 'lost capacity’ but this document must be prepared before the appointer loses capacity.
Can I revoke a power of attorney?Your power of attorney appoints one or more individuals to have the authority to make financial and legal decisions on your behalf. Your attorney can continue to act until they are made aware of the termination of their appointment. To do this, you revocation must be in writing, signed by you and witnessed. If you have an enduring power of attorney, it continues once you lose capacity which is why it is important that in the event you wish to revoke this document, you do so whilst you still have mental capacity otherwise this opportunity will be lost. If you have registered your Power of Attorney with NSW Land Registry Services, you must also register the revocation with the Registry.
Can a power of attorney still be made after I lose capacity?Unfortunately, no. Once a person has lost their mental capacity, they will lose their ability to instruct a solicitor to prepare legal documents on their behalf. If you are a resident of NSW, your family or loved ones will need to apply to the NSW Civil and Administrative Tribunal (NCAT) to apply for a guardianship order. This can be stressful and time-consuming. NCAT will then decide whether or not the person who is applying should be allowed to manage your affairs. There is no guarantee that they will agree and may make an order appointing someone else including the NSW Public Trustee & Guardian.
Who should I appoint as my Attorney?Generally speaking, while it is good to include your spouse or siblings, consider the fact that they may not be around or have the mental capacity themselves to manage your financial affairs. You need to ensure that whomever you appoint, you trust that they will act in your best interests. Ideally, wherever possible, you should appoint two attorney’s and a substitute attorney should one or both of your primary attorneys be unable or unwilling to act.
Do I need to register a power of attorney in NSW?If your power of attorney will require your attorney to deal with property, yes, it must be registered with NSW Lands and Titles Office.
Can someone with power of attorney withdraw money?Yes. A power of attorney is a legal document that allows you to appoint a person or people (your attorney’s) to manage your financial and legal affairs. This means withdrawing and depositing money in your bank accounts and any income you receive. If you appoint more than one attorney to act jointly and severally, you can include a condition such that any withdrawals above a certain amount requires your attorneys to act jointly.
What are the disadvantages of power of attorney?One major downfall of a POA is the agent may act in ways or do things that the principal had not intended. There is no direct oversight of the agent's activities by anyone other than you, the principal. This can lend a hand to situations such as elder financial abuse and/or fraud.
Is it worth having power of attorney?Indeed, a power of attorney forms a vital part of your estate preparation along with your Will and Testament and Enduring Guardianship. Unlike a Will however which only comes into effect once you die, your enduring power of attorney and enduring guardianship are effective whilst you are still alive but have lost mental capacity to take care of your own financial, legal and lifestyle/health decisions. Once you lose capacity however, you also lose your ability to instruct a solicitor to prepare your documents which is why it is so important to do this whilst you still have the mental capacity to do so.