It is essential to plan ahead to ensure that your loved ones are financially protected after your death. The preliminary process of anticipating and considering how you want your assets to be distributed is usually referred to as ‘Estate Planning’. The final process of Estate Planning is completed once a valid and legally enforceable Will is in place.

A Will is a legal declaration by which a testator’s wish in distributing assets is enforced upon the death of such testator. An executor is appointed by the testator to look after the deceased estate or carry out the directions in the Will.

There are various other Estate Planning instruments including Living Wills and Mutual Wills.

Living Wills

Living Wills and Power of Attorneys are made, whereby a testator authorises a medical practitioner and a loved one to ensure that the healthcare decisions are in the hands of trusted people, if the said testator becomes incapacitated.

Living Wills contain 2 important components which are as follows:

the testator gives a written statement directly to a medical practitioner which details out the type of care one is looking forward to in the event of the testator becoming incapacitated; and

the most important document is a Power of Attorney which is referred to as a legal document whereby the person or the testator making the document authorises another person to check whether the said medical practitioner is giving the right level of care and attention to the testator in accordance to his/her Will. Usually the person who has the Power of Attorney may be the testator’s spouse or partner, relative or close friend.

Living Wills are only recognised in South Australia, Victoria, Australian Capital Territory and Northern Territory. Whereas, in New South Wales, a Living Will is known as an Advanced Health Care Directive.

The requirements for making Living Wills are as follows:

The testator or the Will maker should be above 18 years of age;

The testator must be of sound mind; and

The Will must be signed by two witnesses.

Mutual Wills

Mutual Wills are made by two or more individuals upon reaching to an agreement with each other, as to how their property will be distributed to the beneficiaries upon death. Usually Mutual Wills are made between husbands and wives.

A party to a Mutual Will is required to take a prior consent from the other parties before changing or amending the Will.

If one party dies, the survivor is still bound by the terms and conditions of the Mutual Will to dispose of the assets as agreed with the deceased party. The agreement between the parties is an essential factor of a Mutual Will wherein neither of them can revoke their Will without taking prior consent of each other. This agreement can be in writing or in oral.

In case of an oral agreement, it needs to be proved that such an agreement has taken place between the parties.

A Mutual Will can be prepared into one combined document known as a joint Mutual Will or into two separate documents known as Mutual Wills.

If you are contemplating to make a Will, you can contact our team of experts at Owen Hodge Lawyers.

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