Organising affairs in time

Protect your interests and those of your loved ones

Leaving your estate planning documents (will, enduring power of attorney, appointment of medical treatment decision maker, superannuation nominations) to be done at some later time can sometimes cause disappointment, various difficulties, and unnecessary expenses.  It happens often that people are no longer able to make their estate planning documents due to dementia, Alzheimer disease, brain injury resulting from an accident or stroke or similar condition affecting their mental capacity.

There are four legal requirements that must be met for the Will to be considered a valid document:  a Will maker must understand what it means to make a Will; what assets he or she possesses and is leaving to others; who the people are who could make a claim on the estate and what moral obligation is owed to those people. Also, the person must not be affected by a mental disorder or delusions influencing the decisions they make about the disposal of their assets.

Lawyer and Associate at Robertson Hyetts, Vesna Pocuca raises that sometimes it is difficult to determine whether the person has capacity to make the documents at which point the opinion of medical professionals needs to be obtained and obtaining opinion from medical experts can take time. 

When a deceased Will maker suffered from an illness which could have affected his or her capacity to make a Will the Probate Registrar will require medical evidence that the deceased had testamentary capacity, and if it cannot be obtained the Will will be considered invalid.

‘Another issue that arises is that a Will can be challenged by someone who believes that a Will maker lacked mental capacity, and if that issue is raised the person who wants to prove the Will as valid will have to prove mental capacity of the deceased’ says Vesna. 

If a person does not have mental capacity and can no longer make enduring power of attorney, someone must apply to Victorian Civil and Administrative Tribunal (VCAT) to be appointed administrator and guardian. That person might be someone who you did not wish to manage your affairs.

Vesna explains that the best way to avoid these and other difficulties arising from lack of capacity, is to take the time to make the estate planning documents now to protect your interests and those of your loved ones.

To discuss your estate planning needs, please call to make an appointment with Vesna Pocuca in Castlemaine on (03) 5472 1588, or Trent McGregor in Bendigo on (03) 5434 6666.