Estate Planning mainly involves advising and implementing appropriate strategies for the management of the transfer and distribution of a person’s estate following their death. The success of this process is based on Modern Estate Planning Wills incorporating provision for the establishment of individual, optional, discretionary testamentary trusts for beneficiaries.

As a matter of principle we do not provide clients with standard two or three page Wills unless there are exceptional reasons for doing so.

Modern Estate Planning includes taking steps to ensure that during the client’s lifetime, their affairs can be managed on their behalf by trusted family members or friends in the event of temporary or permanent legal incapacity through injury or illness. (See online fact sheets)

This is done through the complementary preparation of Enduring Powers of Attorney and Appointments of Enduring Guardian, with both initial appointees and substitutes nominated. Such legal appointments ensure that the client’s affairs can be managed without the involvement of the Office of the Protective Commissioner or the need to approach the Guardianship Tribunal.

Regrettably the impact of poorly thought out or drafted Wills does not become apparent until the Will has to be implemented by the executor. Assisting executors with obtaining a Grant of Probate is where the quality of a Will comes into clear focus and exposes the limitations of a poorly prepared Will, or one that does not meet the intentions of the Willmaker, or the expectations of family beneficiaries.

Recent examples of the problems that can arise for both executors and beneficiaries that have come to our notice include the following:

• A Will prepared for a wealthy lady which included substantial gifts for grandchildren and her middle-aged daughters, when in fact all her assets were owned in joint tenancy with her longstanding partner. This meant that her estate had very little in it and there was nothing from which her executors could honour her wishes and meet the specified gifts.
  
• A self prepared Will, validly executed, left a modest estate to the Willmaker’s younger wife who was receiving Centrelink benefits as a carer of their young teenage child. The estate assets were not great but exceeded the asset limit and as a result the widow lost her entitlement to the pension while the assets themselves were insufficient to provide an income. Failing to take into account the impact on Centrelink benefits is an ever present issue in many families, particularly where as a couple they qualify for asset tested pensions but, when one dies, the surviving spouse loses the pension even though the inherited assets will not provide an adequate income.
  
• Despite a conscientious financial adviser urging a client to get a Modern Estate Planning Will, the client obtained one that exposes her only daughter’s inheritance to the potential of being accessed by the Family Court. The daughter has been separated for some time and was contemplating divorce when her mother passed away unexpectedly. Not only is the daughter’s inheritance likely to be diminished but part of the mother’s estate was left to the daughter’s children, including a teenage boy who is likely to receive total control of a significant inheritance when he turns 18 shortly. This rightly concerns the mother and could have been easily avoided by the Will setting a qualifying age of, say, 25. So, as a result of a poorly drafted Will, the family runs the risk of the daughter’s inheritance being shared with her estranged husband and her son’s inheritance being squandered through immaturity – both of which were readily avoidable.

An integral part of Modern Estate Planning for clients with business interests involves the complex issue of Business Succession a very relevant issue with many long standing businesses. At RetireLaw we have had considerable experience in assisting clients and their business advisers in dealing with this issue in two separate contexts. The first is through the preparation of “buy/sell” or business succession agreements. These agreements are usually recommended to business partners by their accountants or financial advisers and are normally underpinned by life insurance. RetireLaw has experience in preparing such agreements

This matter is described in depth elsewhere (See online fact sheets), however, it can present a significant challenge to both the business owning clients and their various advisers.

Business succession also needs to be considered in appropriate situations during the estate planning process. In this context a Modern Estate Planning Will can be an excellent vehicle for ensuring business continuity for the benefit of the business owner’s family, and the avoidance of unnecessary and premature sale of significant income producing assets, which might also lead to unsatisfactory tax outcomes.

Another important aspect of the Estate Planning process when dealing with a clients long standing business interests the focus it places on the legal underpinnings of business assets. whether companies or trusts, they can often be in poor condition due to the passing of time, inappropriate structuring, or simply not keeping them up to date having regard to changes in the law or their use.

In such cases we point out to clients and their advisers that to have a reliable estate plan requires assets to have solid foundations, and to be able to proceed with confidence down the estate planning path requires the amendment and updating of key documents such as trust deeds and company constitutions. Single director companies can also provide challenges, particularly should the sole director become incapacitated. In such cases we work with experienced business law specialists to overcome these deficiencies from an estate planning point of view.

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