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

What happens when a beneficiary in a will dies either before the person who made the will ?

  • When a beneficiary dies before the person making the will, the benefit 'lapses'. This means it will pass to the person who was to receive the 'residue' of the estate. If there is no 'residue' clause, this will be the person(s) who would get it on intestacy.
  • However, if the person who was to receive the benefit is a child of the person making the will and they have children of their own (grand children) their share passes to their estate (which may or may not mean the grand children).
  • When a beneficiary dies after the person making the will, their share is part of their estate and will pass to their beneficiaries, even if they haven’t received the funds from the first estate.
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What if I become incapacitated and I haven’t appointed an Enduring Guardian?

The degree of difficulty will depend on the medical people you are dealing with and the persons circumstances. In theory there should not be a problem in most cases.

The Guardianship Act says that when a person cannot make a medical decision for themselves then the decision can be made by the ‘person responsible’ (except in cases of sterilisation or unusual medical matters). The person responsible is defined in a pecking order as:

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What if it does not work out?

  • Getting your money back will be the problem.
  • Whether you are a part owner or a lender, the money can usually only be found by selling the house. Are you strong enough to say to the family member that you want them to sell their house to pay you back. This may cause much friction in the relationship
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What if money is to be borrowed from a bank to buy the new house?

  • If you are a part owner, you will have to sign a mortgage over the property. Are you prepared to go into a mortgage?
  • If your family does not pay, do you have the ability to meet the mortgage payments?
  • If they don't pay and you can't, the house will have to be sold. The bank will get their money before you. Where will you live then?

If this sounds negative, remember I have seen some that have gone wrong and my views must be colored by these. No one comes to tell me how wonderful the new living arrangements are. I have put this on paper mostly to jog people into thinking about what might go wrong. I hope this encourages people to have full and frank discussions with their family before they go into such an arrangement. It is my experience that family often avoid discussing difficulty questions as it can be confronting.

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What if someone is a bit vague or believes things that aren't true, can they make a will?

  • The legal terms for this Capacity to make a will.
  • The classic definition was given in a 1870 case of Banks -v- Goodfellow where the test was said to be that the person making the will must:
    • understand the nature of making a will and its effect
    • 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)
    • known the extent of the property they own or may own at the time of death
    • comprehend and appreciate the claims (ie. moral claims) that they should take into account
    • suffer no disorder of the mind that poisons their affections, perverting their sense of right or prevent the exercise of natural faculties
    • that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
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What if someone is unable to manage and doesn't have Power of Attorney?

The Guardianship Tribunal has Power to grant the right to manage someone's affairs to another or to a government body named The Protective Commissioner. The person or body appointed is called a Financial Manager. If someone is physically or mentally unable to care for themselves, an application can be made to the Tribunal for a management order. The Tribunal will look at evidence as to the person = s condition from their doctor and others. If the Tribunal is satisfied of the person’s inability to manager themselves, it will make the order. If a private individual is appointed, the Tribunal will always order that the Protective Commissioner supervise the manager's actions.

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What if someone is worried about what my enduring guardian is doing?

Anyone with a genuine concern for your welfare can apply to the Guardianship Tribunal for a review of the appointment if they feel that your enduring guardian is not making appropriate decisions on your behalf. The Tribunal can revoke the appointment or confirm it. It may also change the functions in the appointment or make a guardianship order.

The Tribunal does not supervise enduring guardians. It will act only if it receives an application from a concerned person or receives information which leads it to review the enduring guardian appointment.

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What if something is put in the will by mistake?

  • the Supreme Court will not grant probate on a will which was not fully known and approved by the testator.
  • due execution of a will (signing it in front of witnesses) raises a presumption that the testator knew and approved of its contents
  • probate may still be granted of the will but excluding parts that were included because of fraud, mistake or inadvertence
  • the terms of a will can be 'rectified' by the Supreme Court if it is satisfied on evidence that there is a mistake.
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What if the Estate it small?

Banks and building societies have varying rules which allow access to the deceased's funds without a grant of probate if the estate is very small.

Enquiry should be made of the financial institution concerned to ascertain at what level it will insist on a grant of probate before the executor can deal with the funds.

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What if there is no Will?

When a person dies without a will, the law applies the order of Intestacy to determine who are the beneficiaries of the estate. We can give you advice about these laws if necessary.

As there is no will there will be no executor. In such situations, the major beneficiary (or one of them with the consent of the others) can apply to the Probate Division of the Supreme Court for Letters of Administration. This is similar to a Grant of Probate but must be supported by more evidence as to who is entitled to the estate.

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What is an 'enduring' Power of Attorney?

If the signing of the power of attorney is witnessed by a prescribed witness (solicitor, barrister , clerk of a local court etc) and they certify they have explained it to you, the power of attorney 'endures' through any period where you loose capacity to understand what you are doing. Without that certificate, the document ceases to be valid if you can't understand your affairs. An ‘enduring’ power of attorney is the usual type.

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What is an enduring guardian?

An enduring guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. You choose which decisions you want your enduring guardian to make. These are called functions. You can direct your enduring guardian on how to carry out the functions.

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What is an Executor and what do they have to do?

  • When someone dies, the Executor is the person who has responsibility to find out what their assets and liabilities are, pay all the debts and then distribute the balance in accordance with the will or the laws ofintestacy.

 

Executors other duties include:

  • arranging the funeral
  • lodging taxation returns and making sure all tax is paid (the Executor is personally responsible for any unpaid tax).
  • take control of any business or farm and ensure that assets are not lost or stolen or perish.
  • if necessary, sell assets to raise funds to either pay debts, taxes or distribute to beneficiaries.
  • distributing the assets to beneficiaries (or the proceeds of sale of the assets).
  • keep financial accounts of what has been done.
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What is an Executor?

If you have been named an executor in a will, the deceased wanted you to administer his or her estate, perhaps with another person.

There can be any number of executors named in a will, although one or two is usually considered sufficient.

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What is an Executors responsibilities?

In general terms, an executor's duty is to take charge of the deceased's assets and property, see that the debts and taxes are paid and finally to distribute the assets to the beneficiaries named in the will.

You begin by finding out the assets of the deceased. The list could include a home, car, money, a bank or building society accounts, furniture, household appliances, jewellery, shares and other investments insurance policies, superannuation and holiday pay from work. If assets are not being sold but passed to beneficiaries, they may have to be valued to be fair to all beneficiaries.

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What is Power of Attorney?

  • A document you sign that authorizes others to sign financial documents in your name and on your behalf. (They act as your agent)
  • This means you can be legally bound by a document they have signed even though you have not seen or signed it.
  • The document generally authorizes the attorney to manage your financial affairs (subject to any restrictions you have stated in the document).
  • The Power of Attorney can be limited to only doing certain things (ie. Only dealing with the sale of a property) or limited to not authorising the sale of a property or limitedin time (ie. Only while you are on holidays etc)
  • The Power of Attorney is signed by you and (since 16.2.04) your attorney. Powers of Attorney entered into before 16th February 2004 were not signed by the attorney but are still valid despite this change.
  • The person who gives a power of attorney is called a donor and the person(s) who receive it are called the donee(s).
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What is Probate ?

  • A “Grant of Probate” comes from the Supreme Court and is the official acknowledgement that on the available evidence:
    • the deceased is in fact deceased
    • a will is the last will of the deceased
    • the executor is authorised to collect assets from persons holding them on behalf of the deceased.
  • Probate is granted by the Supreme Court (although you don't have to go to court unless there is a dispute about the will)
  • People paying assets of the deceased to the Executor named in the grant of probate are protected from future claims by other persons even if the probate is overturned by
  • Probate can be revoked if the will is proven to be not the last or other defects found in the process (ie. the person is not dead).
  • in that case the Executor may have to pay the money back to the estate (even if they have paid it out to other beneficiaries - the Executor would then have a right to take action to recover from such beneficiaries).
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What principles guide an enduring guardian?

Your enduring guardian must act within the principles of the Guardianship Act, in your best interests and within the law. You cannot give your enduring guardian a function or a direction which would involve them in an unlawful act.

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What should I do with the appointment?

It is a good idea to keep the appointment form in a safe place. Tell someone else where it is. Give a copy to your enduring guardian. You may wish to give copies to significant people in your life (eg your doctor). We usually hold the original or a copy for our clients.

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What sort of decisions can an enduring guardian make?

You can give your enduring guardian as many or as few functions as you like. You can delete the functions you do not want your enduring guardian to have and add others if you wish. For example, you can give them the power to decide on your health care but not where you live.

You may give the enduring guardian directions about how to exercise the decision making functions you give them. For example, you can direct your enduring guardian to consult with a particular close friend before making a decision.

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