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

I have young children, should I appoint a guardian for them?

  • A guardian appointed in a will (called a testamentary guardian) is the person entitled on your death to make decisions for your children. It would not bind a court but would be valid unless over ruled by a court. The problem is that the persons most suitable to have this role when you make the will may be unsuitable when you pass away. People most suitable for guardian situations are:
  • single parents
  • people without family in Australia

 

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I only want it to operate when I can't manage my own affairs.

  • This is a common request but not easy to fully accommodate. Debate rages among lawyers as to how to deal with this. It is possible to put a condition in the Power of Attorney that says something like 'this Power shall only be valid if I am unable to manage my affairs' or ‘only to commence when my incapacity is certified by a medical practitioner’. However in practice this may be impracticable as it would mean that anyone dealing with your attorney such as a bank would have to make a judgment as to whether you were capable or the condition had been complied with. Past experience shows that they might refuse to honour the Power of Attorney for fear you would later claim you were alright and didn’t authorise the use of the document. In such cases, there would be no point in having the Power of Attorney.
  • In my experience, most people accept the difficulty of limiting the use of the power of attorney by reference to their mental capacity. Other lawyers may disagree with the problems I foresee in trying to make it conditional upon such mental health. The difficulty is that the question won’t be tested until you have lost capacity and then won’t be able to sign another document to fix the problem. The best advice is to appoint more than one attorney and only people you trust.
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In Summary

In summary, many people will never need to appoint an Enduring Guardian. This is because they either have a cohesive and formal family structure and the medical people dealing with them see no problem in dealing with the family. However we live in a world where family breakdowns are more common and medical people are more nervous of being sued. The formal appointment of an Enduring Guardian will go a long way to ease potential conflicts.

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Is it a Good Idea?

  • It is a very powerful document. It can be used to deal with all your assets. While you might trust the person you give it to, you must accept the risk that you are giving them the power to do something that is not in your best interests (such as steal your money or mortgage your home) or even if in your best interest, not what you want to happen (such as sell your home when they consider you are not able to live in it anymore).
  • All lawyers are conscious of a case where the lawyer prepared a power of attorney for an elderly lady in favour of her daughter Unknown to the lawyer or the mother, the daughter had a gambling problem and mortgaged the mother's house to raise money to pay gambling debts. The first the mother knew was when the bank told her they were going to sell the property under the power given in the mortgage. The lady sued the lawyer claiming he didn't explain the daughter could do that. He probably didn’t state clearly that 'your daughter could mortgage your house and take the money' thinking it was an offensive thing to suggest to a mother about her daughter but it shows that you can't presume anything or anyone.
  • You can restrict its power by conditions such as "This Power does not authorise the sale or mortgage of my house at 10 Smith St." or some similar restriction. The problem is that it may become necessary for your attorney to sell or mortgage your house to pay for entry into a nursing home or some other need that may not be anticipated. Without a crystal ball is hard to know what restrictions should or should not be imposed.
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My aunt left a handwritten note saying that she wanted everything to go to me when she died but it is not signed or witnessed. Does it have any legal effect?

  • The Supreme Court now has power (since 1989) to give effect to any document that appears to have the intention to be a will. Evidence can be given of statements of the deceased about their intentions.
  • The case of the famous painter Brett Whiteley is an example of this where the Supreme Court accepted evidence by a witness to a handwritten will of its contents though it could not be found.
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My father has made a will but he held the original it and it can't be found. Can a copy of the will be used instead of the original?

  • When a person makes a will and the original was last seen in their possession but can't be found when they die, then there is a legal presumption that they have destroyed the original intending to cancel the will.
  • Like other legal presumptions, evidence can be given in court to overcome this. Such evidence might be given by witnesses relating statements by the deceased shortly before death that show he/she still intended the will to operate. But in the absence of any evidence as to what happened to the original, or statements to support the intention that the will still operate, the person will be found to have died without a will.
  • in such circumstances, the Court will require the persons who would have received a benefit on intestacy to be notified and given the opportunity to dispute the use of the copy.
  • when the presumption can be overcome, evidence of the terms of the will may be accepted by the court even if a copy can't be found.
  • When attempting to obtain probate on a copy of a will, the Supreme Court will require that all persons who would have received the estate on Intestacy be notified of the application and given an opportunity to object.
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My Mother has had a stroke and can't understand anything - Can I get a Power of Attorney for her?

No - a Power of Attorney can only be given by a person who understands what they are signing. If she has lost the ability to understand what is going on then she can not sign a Power of Attorney. Your only solution is to make an application to the Guardianship Tribunal to be appointed Financial Manager of her affairs.

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My uncle left me a house in his will but the house was sold before he died and the money put into a bank account. Can I have the money ?

  • Depends who sold it. If your uncle sold it himself, you are out of luck. If it was sold by his ‘Power of Attorney’ or the Protective Commissioner then you are entitled to the proceeds of sale, if you can prove where they went.
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Technical requirements of a will

  • must be in writing
  • signed by person making will (called the testator) with the apparent intention of approving the will (usually at the foot of each page)
  • if testator is weak, his hand may be assisted to sign
  • signing by another person in the name of the testator is permitted as long as testator present and directs that it be signed. This allows a person who is physically disabled to make a will. This other person may also then be a witness to the will.
  • if testator unable to read, may be read over to him in presence of witnesses.
  • testator's signature must be witnessed by (at least) 2 persons who then sign themselves - all in the presence of each other.
  • all should use the same pen as testator to avoid suggestions that they signed at different times.
  • witnesses should print their name and address under signature so they can be found if necessary when the testator dies. They would normally only be needed if there is some doubt that the will was signed properly.
  • witnesses can be any person old enough to give evidence in a court - not necessary to have JP or similar).
  • witnesses cannot receive a benefit under the will nor can their spouse (if witness or spouse named in will, the will is still valid but they or their spouse can't get the benefit).
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What are joint and alternative enduring guardians?

You can appoint enduring guardians to act jointly (the enduring guardians must agree on all decisions), severally (each enduring guardian can make decisions separately from the others), or jointly and severally (the enduring guardians can act together or separately).

You can choose to have the remaining joint enduring guardian(s) continue even though one or more of the others die, resign or become incapacitated. The Appointment of Enduring Guardianship form provides an option to allow for this in Section 1c. If you do not choose this option, the enduring guardianship will end automatically when one of the joint enduring guardians dies, resigns or becomes incapacitated.

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What decisions can't an enduring guardian make?

An enduring guardian cannot consent to anything unlawful and cannot:

  • make a will for you,
  • vote on your behalf,
  • consent to marriage,
  • manage your finances, or
  • override your objections, if any, to medical treatment.

If at the time decisions are made by your enduring guardian to which you strongly object, the matter can be brought to the Guardianship Tribunal.

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What do I do after Probate is granted?

Once probate has been granted, the executor must collect the deceased's assets and pay any debts or taxes including income tax the deceased owed. In view of possible liability for capital gains tax it is important to find out the date and cost of acquisition of the deceased's assets.

Funeral expenses are to be paid first and there is a particular order in which any other debts must be paid. After funeral expenses are paid, the executor is entitled to claim any expenses relating to the administration of the estate before other debts are paid.

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What happens if a witness dies?

  • The will is still valid
  • The only problem is that the witness can't give evidence that the will was freely signed by the Testator.  This will only be a problem if there is a dispute over the signing of the will.

 

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What happens if I do not make a will - does it all go to the government ?

  • When you die without a will, the legal term is "to die intestate." The estate only goes to the Government if you have no relatives of the required categories. In the next item, I have set out the list of relatives in order. If there are no relatives in one group then it drops to the next group and so on. If there are relatives in a higher group then those on the lower group get nothing. The word spouse means either legal spouse or de facto spouse (see next).
  • if you don't have a will the persons entitled have to be established by documentary evidence such as birth, death and marriage certificates. These can sometimes be difficult to obtain if the events took place overseas or the details are unknown.
  • in your will you name the Executor. If you have no will the person who deals with your assets may not be your choice. There may be a dispute amongst beneficiaries as to who should administer the estate.
  • if any beneficiaries are under 18, the court will require the administrator obtain person guarantees (sureties) from two other persons. Those persons then become liable if the funds ‘disappear’. There may not be many people who are prepared to give such a guarantee.
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What happens if I get married?

If you marry after appointing an enduring guardian, the appointment is automatically revoked or cancelled. If you wish to reappoint the enduring guardian, you need to complete a new application form reappointing the person.

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What happens if my enduring guardian cannot continue?

If the person you have appointed dies, resigns or becomes incapacitated, the Guardianship Tribunal can, in limited circumstances, order another person to be appointed as enduring guardian on your behalf. Someone will need to lodge an application on your behalf.

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What happens if my executor dies before you?

  • If he dies either before you or after you but before obtaining probate of your estate, the other executors (if you have named more than one) take on the task. If this leaves you with no executor, the principal beneficiary will have to apply for 'Letters of Administration with the Will Annexed'.
  • If one of your executors dies after you and after obtaining probate of your estate but before the estate is finalised, the other executors continue the task. If there are no other executors, the executor of the deceased executor takes over both your estate and the executor's estate.
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What happens if two beneficiaries die together?

  • When it can't be decided who died first, the law presumes people to die in order of seniority (ie. eldest first). This may mean that the assets of the elder pass to the younger and then to the beneficiaries of the younger.
  • If two people own an asset as joint tenants (the other form of joint ownership is called 'tenants in common') then a rule known as 'survivorship' applies. This rule means that when one dies, it automatically passes to the other, regardless of what the first persons will said. If they both die together, it passes to the younger and then to the younger's beneficiaries.
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What happens to a persons property when they someone just disappears?

  • If a person is not heard of for 7 years, an application can be made for Probate of their will (if there is a will) or Letters of Administration of their estate (if there is no will).
  • Death must be the most likely explanation for silence.  This means that they more likely disappeared to avoid paying their debts.
  • The time may be shortened if they were exposed to 'unusual perils' such as being lost at sea or in a plane.  This is what happened to the passengers of the plane that disappeared on the way to Lord Howe Island.
  • Sometimes the declaration of death is made by an inquest into the disappearance.
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What happens to my debts when I die?

  • They are paid by selling your assets. This is the job of your executor.
  • The executor has to determine what are your assets and what are your debts. He/she must sell your assets, pay your debts and distribute the balance according to your will.
  • your home may have to be sold to pay your debts unless there are other assets available.
  • As part of an application for probate, your executor is required by law to advertise that he is going to apply for probate or your estate and invite people to make claims in your estate. The solicitor would normally arrange this advertising. If you look in the legal pages of the Sydney Morning Herald you will see such ads.
  • if your debts exceed your assets, they can't be paid. Your next of kin are not responsible for your debts (unless they have guaranteed them somehow).
  • your executor is personally liable for any income tax you owe.
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