Officially, I am Bernard but most people (except my mother) call me Bernie. I started in the law in 1968 as a clerk in the Court House at Parkes. I worked in the Local Court system studying law part time until I joined the Public Solicitors office in 1977. I was admitted as a solicitor in 1978. In 1979 I started work with Owen Hodge then of Butle...r's Road, Hurstville. I practised mostly in family law, compensation and general litigation. In 1982 I bought the practice of John Spicer at Bexley North. John practised mostly in commercial, conveyancing, club and estate work. John retired and I named the practice "Spicer and Hayward". In 1987 I merged Spicer and Hayward with Owen Hodge, with whom I had maintained close ties. I looked after conveyancing, commercial and estate matters. I also computerised the office becoming the managing partner. I returned to sole practise at the start of 1990 at the present address at Hurstville. I have been a sole practitioner since that time. More

Are there any death duties ?

  • Death duties were abolished in 1981 for any person dying after that date.
  • Capital Gains Tax is considered by some to be a form of death duties.  I have given a short resume of this below.
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Can I Cancel it?

  • Yes, at any time (provided you have capacity)
  • The procedure is to advise the Attorney that their authority is cancelled. To avoid claims that this was not done, it is best to serve a formal "Notice of Revocation" and register it at the Land and Property Information Office.
  • If the Attorney does something under the Power of Attorney after notice of its revocation, this is fraud and they have committed a criminal offence.
  • Of course, if you are unable to manage your own affairs through mental incapacity, you will not be able to cancel the power of attorney.
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Can I change my mind?

While you are capable of making your own decisions, you can revoke the appointment of an enduring guardian. To do this you need to complete a Revocation of Appointment of Enduring Guardian form. This form will also need to be witnessed by an eligible witness. You have to advise the enduring guardian in writing that their appointment has been revoked.

You can appoint a new person as your enduring guardian, or change the functions or directions given to your enduring guardian. You will need to complete a new form of appointment to achieve any of these things.

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Can I have more than one Attorney?

Yes, you can have any number, although more than 2 can become unmanageable. They can be authorised either:

  • 'Jointly' which means they must both sign any document on your behalf.
  • 'Severally' which means that any one can sign - without necessarily having the consent of the others.
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Can I make my own will without a solicitor?

  • Yes. Your will is valid whether made with or without the assistance of a solicitor or Trustee, as long as it meets the technical requirements. (see below).
  • The usual problem with homemade wills is that they are typically made as if you are about to die but when you do die (hopefully years later) everything has changed:

    A home made will might say "I leave my house at Hurstville and my Commonwealth Bank account to my wife Mabel, any other money to my sister and my car to my son". This might be fine at the time but what if you have sold the house at Hurstville (perhaps it was sold by your Power of Attorney because you are in a nursing home), the Commonwealth Bank is now called the Murdoch Bank and there is no car ? - the effect of the will, will be completely different. The money from the house will go to your sister and your wife and son will get nothing.

  • An experienced solicitor would be less specific with assets and have thought of the possibility that the house might be sold and turned into cash and that the bank details may change.
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Can’t I just get a letter from Mum giving me authority?

It is up to the organization that you have to deal with as to what authority they require. The Land and Property Information Office which controls the ownership of real estate and therefore buying and selling of houses insist on a Registered Power of Attorney. Centrelink seems to have its own form of authority and banks usually insist on a Power of Attorney but not usually a registered one. A bank will usually have a procedure to authorize someone else to sign on an account and this may solve the problem of paying bills.

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Capital Gains Tax

  • This is a tax on the increase in value of assets that are not exempt.
  • The way it works is that half the increase in value from when an asset is bought or received to when the assets is sold or transferred is added to the sellers other income in the financial year of the sale/transfer.
  • It is payable whether you receive funds for the transfer or not - so if you gift a liable asset without receiving anything, you still have to pay the tax.
  • Principal place of residence is exempt from capital gains tax.
  • Only applies to assets on which the ownership changed after 19 September 1985.
  • Death doesn't create a liability to pay the tax but is a change of ownership so that assets originally bought before 1985 now become liable for tax on any increases (from the date of death).
  • if the asset was bought by the deceased after 1985, you inherit his/her liability (if any) although you don't have to pay it until you sell or transfer the property.
  • if the asset was the principal place of residence of the deceased, you have up to 2 years from the date of death to sell without having to account for any increase from the date of death to the date of sale. The sale has to be completed, not just contracts exchanged, within that time. You can pocket any increase in value in that time.
  • if you sell after the 2 years, any increase in value from date of death to date of sale is liable for capital gains tax in the hands of the beneficiaries.
  • you are allowed to deduct the costs of getting the asset into your name and the sale costs.
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Does GST affect an estate?

  • It depends on what assets are in the estate. If the deceased controlled a business which has therefore passed to the estate, then the estate needs to register for GST and put in returns etc. Legal fees of administering the estate will be liable for GST. If real estate is to be sold, the agent commission will be liable for GST. The matter will need to be looked at by your lawyer at the time.
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Does it need to be registered anywhere?

  • A Power of Attorney can be registered at the Land and Property Information Office. The cost is about $130 to have it registered. The registration process does not require the signature of the person giving the power so it can be done at any time, even after they have lost capacity
  • It must be registered to deal with real estate and registration is sometimes required to deal with shares or banks.
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Glossary - explanation of terms

  • Testator - the person who makes the will
  • Executor - the person(s) who collect in the assets, pay the bills and distribute the assets to the beneficiaries.
  • Beneficiary - the person(s) who receive a benefit from the estate according to the terms of the will
  • Probate - the approval of the Supreme Court to the will.
  • Intestacy - when a person dies without a will.
  • Household chattels (where someone dies without a will) - there is a lengthy definition in the Wills Probate & Administration Act Section 61A (which is too boring to include) but it specifically excludes motor vehicles, boats, aircraft, racing animals, original painting, trophy, clothing, jewellery or other chattel of a personal nature.
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How can B. Hayward & Co. help me?

We can:

  • Inform you in detail about the rights and responsibilities of an executor;
  • Prepare and help you to complete the forms needed to apply for probate;
  • Assist you to identify and collect the deceased's assets;
  • Advise you about the legal order in which debts must be paid and the remaining assets distributed;
  • Explain the legal order of distribution of the estate in a case where there is no will;
  • Help you to draw up the report and statement on the assets for the beneficiaries.
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How can I cancel a will that does not reflect my current wishes ?

  • Make a new will. A standard clause in a will says 'I revoke all previous wills'.
  • Destroy the will or write cancelled on it. You need to have the original for this. The destruction must clearly be with the intention of revoking the will, not just accidental.
  • you can direct someone else to destroy the will but it must be done in your presence. It is not sufficient to ring your solicitor and tell him to destroy it.
  • by some writing (ie. a letter) that is signed in the same manner as a will (with 2 witnesses etc).
  • You can't authorise someone else to revoke a will after your death.
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How is it Created?

  • A power of attorney is created by signing a document that is usually prepared by a lawyer. It authorizes the person(s) named to act on your behalf. It does not need their signature. It can only be given by a person who understands the meaning of the document at the time.
  • The attorney(s) is legally obliged to act on your directions if you are able to give any and they would be guilty of a crime if they just took your money and spent it without your authority (if you were able to understand and give that authority).
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How long does it last?

It lasts until you either:

  • Cancel it. This is called 'revoking' – see above.
  • Pass away. A power of attorney ceases to have any effect after your death.
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How many guardians can I appoint?

You can appoint one or more persons as enduring guardian. If you appoint more than one enduring guardian, you can direct them to act jointly or separately (severally).

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How often should I update my will?

  • Only marriage will cancel a will but circumstances change and this means your will might need to change too.  If you loose a spouse or child then you should review the will.
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How old must you be to make a will?

  • You must be 18 to make a will.
  • you can also make a will if you are married below that age. In NSW you have to be 18 to marry unless you have a court's permission.
  • a will made in contemplation of marriage would become valid when you married, even if you were under 18 when you made it.
  • the Supreme Court can give permission to a minor to make a will.
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I am an executor in a will. Do I get paid for my time and trouble ?

  • An executor who wishes to be paid for his time and trouble can claim 'commission'. This is an amount determined by the Supreme Court as compensation for what was involved.
  • If an executor is also left something in the will, this is taken as payment for their time andtrouble. They can get nothing more unless the will specifically allows them commission.
  • To make a claim for commission, an executor would normally have to do something more than just go to his solicitor and tell him to do the work.
  • Examples of cases where an executor would be entitled to commission are:
    • where a business has to be run to sell as a going concern
    • where a house has to be cleaned up and this involves a reasonable amount of unpaid time (not when you engage a cleaner to do it)
  • The amount of commission is determined by the court based on the amount of trouble but something around 0.5-2% of the estate would be usual.
  • A full set of accounts of the estate have to be provided to the court if commission is claimed.
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I have heard of Testamentary Trusts. Does this have anything to do with a will? Can they save tax ?

  • A Testamentary Trust is any trust created by a will.
  • The term is also used to refer to a trust created with money that came from an estate.
  • It is common in a will to make gifts to children. They might be your children or grandchildren. If these gifts are invested and earn interest, this interest will be income in the child's name. Normally a child (under 18) is only allowed to receive $416 per annum unearned income before paying tax at the maximum rate. This rule was introduced a few years ago to stop high income earners splitting their income through family trusts into their children's names. However, there is an exemption to this rule. If the trust income comes from assets left by an estate, then the normal tax rates and exemptions apply.
  • this means that the first $6,000 is tax free and the progressive rates of tax apply to the balance. The savings can be substantial.
  • you must have an estate of sufficient size to justify setting aside funds for infant beneficiaries and still provide for adult beneficiaries.
  • the exemption can also apply to funds you have placed into a trust for children when the funds have been left to you from an estate. There are more restrictions on this type of trust and the funds must be put into the trust within 3 years of the death. Also limits on the amount of benefit apply.
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I have married since I made a will. Does this make any difference ?

  • the general rule is that marriage cancels a will so you now have no will - if you died without making a new will, the rules of intestacy would apply to you.
  • The exception to the rule is if the will is made 'in contemplation of marriage'. It is best if these words are stated on the will but the terms of the will or surrounding circumstances may show that marriage was being considered in making the will.
  • Divorce does not invalidate a will but such ex-spouse is dealt with as if they had died before you. If you want to provide for an ex-spouse the will would have to be very specific. I suggest words like 'This clause is intended to apply even though I have divorced ...'
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