To find out more about this area of law, please see our legal questions and answers on this topic below, or click here to see our complete list of Legal Questions & Answers.


Do "superannuation death benefits" form part of a person's Estate when they die?
No, the money is provided for "dependants". If there are no dependants then the money is paid into the person's estate, but this is a separate act carried out by the trustees of the superannuation fund

Should I nominate my parents (who are self sufficient) as the recipients of my superannuation death benefits?
No, superannuation death benefits are only paid to your dependants and your self sufficient parents would not be dependant on you. The superannuation fund trustees would not pay the money to your parents, despite your nomination for them to receive the money and the money would most likely be paid into your estate.

How do I avoid problems with my superannuation death benefits when I pass away and how do I make a Binding Death Benefit Nomination?
Instruct us to draft a Binding Death Benefit Nomination for you. Have two people witness it who are not referred to in the document. Nominate a legally valid dependant and in order for the document to be legally binding it must be re-signed every three years.Note: Check your superannuation fund deed to ensure that it is bound by Binding Death Benefit Nominations.

Why is it important for me to have a Will?
A Will is a legal document designed to inform your Executor and your family of your wishes. Such wishes include the distribution of assets, the guardianship of any surviving children and details as to why you may have specifically left somebody out of your will. You arrange to have a fresh Will drafted when any of your circumstances change (eg. marriage / separation / divorce or birth of children).

How do I amend my Will after I have signed it?
To amend a Will you can either instruct your Solicitor to prepare a "codicil" (document), which will be attached to your existing Will or instruct your Solicitor to prepare a new Will. Depending on the amount of amendments to be made, it is often best to instruct your Solicitor to prepare a new Will for you.

My Financial Adviser has told me to instruct a Solicitor to draft a Will, Power of Attorney, Appointment of an Enduring Guardian & an Advanced Health Care Directive (“Living Will”). What are they?
A Will expresses what you want done with property and other matters after you die. It is very important to set out in your will both what you do and do not want done. Everyone should have a will. A Power of Attorney allows the "Attorney" appointed by you to do as much or as little as you specify in the document appointing them. Attorneys are often appointed for convenience in executing legal documents for when you are away or un-contactable Appointment of Guardian, is a document that designates who can make medical and other decisions for you when you are unable to make those decisions due to your state of mind (for instance, being in a coma). A Guardianship Appointment does not deal with what decisions the guardian can make for you. If you wish to limit your guardian's powers you can make an Advanced Health Care Directive (“Living Will”). An Advanced Health Care Directive ("Living Will") contains information about the medical treatment you wish to receive if you are incapacitated. A Living Will significantly reduces the burden on family and friends, particularly in relation to making decisions about your physical and mental health. A guardian appointed under a Living Will can make decisions for you which would otherwise have to be made by medical specialists and the courts after a lengthy and bureaucratic process (often at the expense of and considerable stress to your family and friends).

My Mother passed away recently and didn’t leave me anything in her will. Can I contest the will?
To contest a will you need to be able to show that you were: 1. An “eligible person”, which is a spouse, de facto partner, a former spouse, child, grandchild or member of the willmaker's household who was at any time dependant upon the willmaker and lived in the same premises as them; 2. Not provided with adequate finances or resources out of the Estate to assist you with your needs, such as living expenses, education expenses and advancement in life; 3. Not provided with a fair share of the Estate when you should have been.

What is the limitation period for lodging an Application for provision from a deceased estate under the Family Provision Act (contesting a will)?
18 months from the date the Will maker died.

Who pays for the legal costs involved when a Will is contested?
The legal costs are often paid out of the will maker’s estate. If a person has been unreasonable they may have to pay for the legal costs incurred by others as a result of their failure to withdraw their claim or agree to an appropriate settlement.

Although I am the Executor of my parents Will they did not leave anything to me. Can I dispute the Will?
Yes, however you will need to resign as Executor.

Why would I use a Solicitor to prepare my will instead of buying a "Legal Will Kit" from the Post Office?
You would use a Solicitor for the same reason that you would engage a surgeon to carry out your heart surgery. Solicitors are trained in the craft of writing. They also have experience in dealing with family disputes about Wills and they know what can go wrong and how to help avoid problems. Throughout your lifetime you are likely to accumulate significant assets. You do not want to see all of that hard work wasted away as a result of a badly drafted Will, family squabbles or poor tax planning. Due to "Legal Professional Privilege" Solicitors are the only people who cannot be forced to reveal your secrets. You can store your Will in your Solicitor’s safe custody knowing that it will remain confidential and protect your wishes and your family's interests.