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The Law and You: How to succeed at succession

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It’s been more than 12 years since the death of The Godfather of Soul, James Brown, yet his $100 million estate remains embroiled in litigation.

Upon his death, Brown’s estate plan appeared to be in order. His clearly expressed intentions were to have most of his estate distributed to an educational charity, each of his adult children provided for, and a family education fund established for his grandchildren.

However, Brown’s sizable gift to charity shocked and upset his heirs. His adult children sued the estate’s personal representatives, alleging that their father’s assets were being mismanaged.

To further complicate matters, Brown’s wife at the time of his death, Ms Tomi Rae Hynie, and the child of their marriage, received nothing. This was because Brown failed to update his Will before he passed to reflect that marriage and birth.

Hynie filed a lawsuit asking the Court to recognise her as Brown’s widow and their child as an heir. As of today, the Supreme Court of South Carolina has upheld Brown’s charitable donation and recognised Hynie as Brown’s wife and her child as an heir.

Brown’s estate has been mired in controversy because he simply failed to update his Will and clearly communicate his current intentions to his family.

Had he been more diligent and proactive with his estate planning, much of this needless strife and legal expenses may have been avoided.

This column explores Wills and Enduring Powers of Attorney—two essential documents you should have in place for your estate planning.

Why is a Will so important?

One of the greatest gifts you can give your loved ones is to be clear on your testamentary intentions.

Even if your family members disagree with how your estate is distributed, clearly expressing your intentions may prevent them from feeling they’ve been cheated by another family member or third-party.

It can also save money being wasted on legal disputes. You simply can’t put a price on a good Will.

Why is an Enduring Power of Attorney important?

In addition to a Will, it’s important to consider entering into an Enduring Power of Attorney. This document assigns somebody of your choice the power to make financial and medical decisions for you if, due to illness or injury, you lose the capacity to do so for yourself.

Decisions may include paying your bills, managing your bank accounts, presiding over property transactions, and consenting to healthcare therapies on your behalf.

What happens if I don’t have a Power of Attorney?

If you lose capacity to make decisions and do not have an Enduring Power of Attorney, then your family member or other close relation may have to apply to the ACT Civil and Administrative Tribunal (ACAT) to be appointed to make decisions on your behalf.

Moreover, ACAT has the power to review an Enduring Power of Attorney if concerns are raised by interested parties as to the validity of the document and make Orders to replace the document if ACAT is satisfied that it is invalid.

The importance of having a well-drafted Enduring Power of Attorney—just like a Will— can’t be understated.

What is an Enduring Guardian, and do I need one?

In New South Wales, the law is slightly different to the ACT. Instead of an Enduring Power of Attorney document for medical, lifestyle and financial issues, NSW residents have two complementary documents in its place.

One of these is an Enduring Guardian for lifestyle and medical decisions on your behalf.  This only comes into operation if and when you lose capacity.

In NSW law, the second document is called an Enduring Power of Attorney (as it is in the ACT), but it is limited to the delegating of financial affairs management and does not extend to the making of medical decisions like it does in the ACT.

How often should I update these documents?

With all these documents, it’s important that they be updated to ensure they reflect your current intentions and any milestones in your life.  For example, many are surprised to learn that an Order for Divorce does not revoke a Will.

If you don’t have a Will and/or an Enduring Power of Attorney or haven’t appointed an Enduring Guardian, now is the time to act. The experts at Watts McCray Lawyers are here to help.

This editorial was created in partnership with Watts McCray. For more information on sponsored partnerships, click here

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