Changes to Enduring Power of Attorney and Advance Health Directive Forms in Queensland

Changes to Enduring Power of Attorney and Advance Health Directive Forms in Queensland

From 30 November 2020, the Enduring Power of Attorney (EPA) and Advance Health Directive (AHD) forms that have been used for nearly 20 years in Queensland will be replaced by new versions. These changes accompany the amendments to the Powers of Attorney Act 1998 (Qld) that were brought in by the Guardianship and Administration and Other Legislation Amendment Act 2019 (Qld) (Amendment Act), which include:

  • Explanatory guides to accompany the new forms
  • Capacity assessment guidelines
  • Changes to general principles and health care principles
  • Conflict transactions
  • Further eligibility requirements for attorneys
  • Recognising interstate or New Zealand enduring powers of attorney

New Forms and Explanatory Guides

The new forms are arguably more user friendly, and the explanatory guides help users to complete these forms correctly.

Some notable inclusions in the new forms are:

  • A dedicated section in which the principal may record their views, wishes and preferences, which are to be considered by the attorneys but are not considered instructions.
  • A dedicated section in which the principal may express who the attorney(s) must notify when exercising their powers, what kind of notification must be made and when.
  • (For an AHD) A dedicated section in which the principal may give specific instructions about blood transfusions.

Capacity Assessment Guidelines

The capacity assessment guidelines are designed to assist witnesses to an EPA/AHD when witnessing a principal’s signature and family members, health professionals and financial institution workers when determining whether or not attorneys should be making decisions on behalf of a principal.

The guidelines emphasise the presumption that an adult has capacity and that attorneys should take into account the human rights of the principal.

The guidelines also include a 6-step checklist to assist in conducting a capacity assessment and details on the different legal tests that are applied for different kinds of forms and decisions.

Changes to General Principles and Health Care Principles

While the relevant legislation prior to the Amendment Act contained general principles and health care principles in relation to enduring documents, these have been given more prominence under the new legislation and have been updated to be more consistent with human rights in respect to adults with impaired capacity participating in decision-making.

Updated general principles include:

  • An additional focus on the fundamental freedoms of the individual, including respect for their inherent dignity, worth, autonomy and independence, and their right to non-discrimination, equality and accessibility;
  • An obligation on attorneys to perform their duties in a way that promotes and safeguards the individual’s rights, interests and opportunities and is least restrictive of those rights, interests and opportunities;
  • A 4-step process that attorneys should undertake in making decisions for an individual.

Health care principles assist attorneys in making decisions regarding the principal’s health matters and special health matters.

Updated health principles include:

  • An obligation on attorneys to adopt both the general principles and the health principles when performing a function or exercising a power in relation to health care or special health care;
  • A similar additional focus on fundamental freedoms of the individual as is found in the updated general principles;
  • An expansion of the factors that need to be taken into account when performing a function or exercising a power in relation to health care or special health care.

Attorneys need to be aware of all of these principles as they must apply them when performing their duties as attorney.

Conflict Transactions

The changes specify that an attorney for a financial matter may only enter into a conflict transaction (for example, a transaction between themselves in their individual capacity and in their capacity as attorney for the principal) if the principal, or the Supreme Court, has authorised the transaction.

While this authorisation should be obtained in advance, retrospective authorisation may be granted by either the principal (if they have capacity) or the Court; however, until such authorisation is obtained the attorney is taken to have acted in breach of their obligation to obtain authorisation.

Further Eligibility Requirements

In addition to current requirements, the new legislation provides that an eligible attorney under an EPA:

  • must have capacity for a matter; and
  • must not have been a paid carer for the principal in the previous 3 years before their appointment.

In addition to current requirements, the new legislation provides that an eligible attorney under an AHD must not be a service provider for a residential service where the principal resides.

Recognising Interstate or New Zealand Enduring Powers of Attorney

Under the changes, an EPA may be made by an adult principal outside Queensland so that, where the person lives interstate or overseas and makes an EPA under Queensland legislation, the instrument will be effective in Queensland.

EPAs made in another state or made in another jurisdiction including New Zealand will also be recognised in Queensland.

If you have any queries about the upcoming changes or would like to discuss any aspect of your estate plan, please don’t hesitate to contact us.

What if I unexpectedly die without a will?

What If I Unexpectedgly Die

For younger persons the thought of death may not have crossed our minds as death seems far from us. But unexpected things happen, accidents may occur, sudden health issues or a pandemic may hit, that is why they are unexpected.

Should you die intestate (without leaving a will), someone will need to apply to the Supreme Court of New South Wales for a grant of letters of administration. The grant is a legal document issued by the Court for the applicant administrator to deal with your assets. Asset holders may not release your assets without a grant.

The application may be a lengthy process because of the following issues:

1. Who should apply as the applicant?

Only a person who is entitled to the intestate estate can apply for letters of administration, that is the next-of-kin according to the Succession Act 2006 (NSW). Eligible persons must survive the deceased by 30 days to be entitled and provide evidence of their relationship with the deceased, such as marriage certificates and birth certificates.

The law determines that your assets shall pass to your:

(a) Spouse including de-facto partner, same sex partner and multiple spouses;
(b) Children including children of another relationship and adopted children, but not step children. Grandchildren and great-grandchildren may be entitled where children of the deceased died before the deceased;
(c) Parents;
(d) Brothers and sisters;
(e) Grandparents;
(f) Aunts and uncles, and first cousins may be entitled where aunts and uncles died before the deceased;

in that order upon the exhaustion of the previous category, and if none of the above, then to the State.

It will not matter if you do not have a good relationship with your next-of-kin and never intended to leave any of your assets to them, the law does not take this into account if you did not leave a will.

2. The applicant needs to prove to the Court that a will did not exist.

Searches for a will are required to be made with the following:-

(a) The deceased’s personal papers at his home(s);
(b) The deceased’s previous solicitors;
(c) Banks where the deceased held bank accounts; and
(d) The New South Wales Trustee and Guardian.

The applicant should also check with other family members and the deceased’s close friends as the deceased may have mentioned to them about making a will, and any safe deposit boxes.

3. Gathering information about the deceased’s assets.

The applicant may not be familiar with the financial affairs of the deceased and the deceased may not have kept organised records so it may take some time to gather this information which is required to be disclosed to the Court.

Estate planning does not need to be complicated but dealing with an intestate estate may be complex.


How to write a will during the coronavirus pandemic

How to write a will during the coronavirus pandemic FAQs

Can I make or change a Will during the present coronavirus pandemic?

We have been inundated with enquiries in regards to the preparation of Wills, enduring powers of attorney and enduring guardianship documents since the outbreak of the deadly COVID-19 (coronavirus) pandemic. Whilst the current lockdown laws have made preparation and execution of these documents problematic, we can still work around these issues and draft or amend your Will and estate planning documents during these unprecedented times

Can you make or change your Will during the coronavirus pandemic?

We have received many calls from our clients who are worried that they cannot attend our office to discuss their estate planning affairs. Undertaking any legal obligation is a reasonable excuse under the recent Emergency Legislation passed by the NSW Government in respect to the coronavirus pandemic. You can still attend our office and we will practise social distancing and have a bottle of hand-sanitizer available for use. If you feel uncomfortable and do not wish to attend our office, we are still able to take instructions via telephone, e-mail, Skype and Zoom.
We are fortunate in this day and age to utilise technology to our advantage which enables us to work from home and engage our clients as we would normally if we were in our office.
We understand how important it is to have your estate planning affairs in order, especially during these difficult times and one of the rare positives of the coronavirus pandemic is that it has brought Wills and estate planning to the forefront of people’s minds and made them realise that this is one matter which they simply cannot ignore or overlook.

How can my Will be witnessed during the coronavirus pandemic?

Normally, a Will is signed by the Testator in the presence of two adult witnesses. It is recommended that the Testator and both witnesses use the same pen in executing the Will and each witness cannot benefit from the Testator’s Will.
As mentioned earlier, undertaking any legal obligation is a reasonable excuse under the recent Emergency Legislation and therefore you are able to attend our office to execute your Will.
If you feel uncomfortable in attending our office, you could have your neighbours witness your Will and we have read reports of people witnessing Wills through windows to minimise contact and continue practising social distancing.

Can I and my witnesses sign the Will electronically?

Yes you can. The NSW Government has passed a regulation being the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 which permits the signing of wills, powers of attorney and enduring guardianship documents to be witnessed by audio visual link i.e Zoom, Skype, Whatsapp or Facetime.

The regulation will expire 6 months from 22 April 2020 unless the NSW Government decides otherwise. It is prudent to take advantage of the additional flexibility allowed under the current regulation if you are struggling to find a witness or find it difficult to attend our office.

Any further questions?
Please feel free to contact us on 9307 8900 or [email protected]

Contesting a Will – What to do if you have been left out?


With the ever changing social dynamics around us, it is becoming more apparent in the average Australian family space that people are contesting Wills.

So what does this mean for you?

As you are aware, people are able to decide who will inherit their estate by writing a Will. Unfortunately, people make decisions in respect to their Will that fail to take into consideration their spouse, de facto partner, child or someone who is dependent on them. Nevertheless, the law provides protection to people who have been left out or receive an unfair or disproportionate provision from a deceased estate.

If this sounds like you, you are able to contest a Will and bring a family provision claim against the deceased’s estate in order to receive an adequate provision from the estate.

To bring a family provision claim, you must be an eligible person e.g spouse, de-facto, child or a dependent of the deceased. A grandchild is not an eligible person unless they were a dependent of the deceased.

You also have only 12 months to make a claim from the date of the deceased person’s death, so it is critical to obtain legal advice as soon as possible.

Contesting a will: what the court considers

Should you be an eligible person, the Court will then consider the following matters;

1. Your relationship with the deceased;
2. Your financial resources and needs together with the financial resources and
needs of other beneficiaries;
3. The size of the estate;
4. Any contributions made by you to the deceased during their lifetime;
5. Any gifts received by you from the deceased during their lifetime;
6. The financial circumstances of your partner (if you have one);
7. Your dependency on the deceased
8. Your age and health;
9. Your character and conduct towards the deceased;
10, Any other matter the Court considers relevant.

If you believe that you are an eligible person and have been left out of a Will or have not received an adequate provision, you may be able to contest the will and obtain more than you think.

Equally, if you are an Executor and you are required to defend a family provision claim, we can assess your claim and provide you with expert advice with an aim to settle your matter swiftly in order to minimise the costs incurred by the estate.

Our team has extensive experience in estate litigation and whether you believe you are eligible to make a claim or require advice in defending an estate, we can assist you.

If such is the case or if you require further information in relation to the above, please contact Ian Agamalis or James Hatzopoulos at Rostron Carlyle Lawyers on (02) 9307 8900 or by email to [email protected] or [email protected].

Wills and Estates: An annuity may not be adequate provision for proper maintenance and advancement for a widow


What does it take to make adequate provision for proper maintenance and advancement in a will?

Is it a matter of moral duty or community standards?

The answer to those questions depend upon a range of factors.

In Steinmetz v Shannon [2019] NSWCA 114, the appellant was the second wife of the deceased, who left an estate of approximately $6.8 million. The estate consisted of real estate, a superannuation policy, a real estate business and a liquor outlet business.

By his will, the deceased left the appellant an indexed annuity of $52,000 for the remainder of her lifetime. The remainder of the estate was left to the respondents, who were the independent adult children of the deceased’s first marriage.

The will contained the following provision:

“IT IS MY EXPRESS WISH that my Estate remains a whole for my children and grandchildren. I have drafted my Last Will and Testament in the above manner as I believe that it enables my wife to live comfortably for the rest of her life without having to dispose of the assets that I have worked my whole life for.”

The will was made hurriedly in circumstances where the deceased was about to undergo surgery which he feared he might not survive. Instructions were in fact given to the deceased son in law who was a solicitor.

The trial judge dismissed the appellant’s family provision claim. The widow appealed.

The principal issue on appeal was whether the annuity was adequate provision for the appellant’s proper maintenance and advancement in life.

The members of the Court of Appeal all approached the issues slightly differently, but unanimously held, allowing the appeal:

Adequate provision for a proper annuity is not limited to the provision of financial necessities.

Section 59 of the Succession Act (NSW) is to be applied according to its terms, and not confined by notions of reluctance to interfere with freedom of testation.

Insofar as it is necessary to resort to concepts of “moral duty” or “community standards” as a measure of proper provision, the former is preferable.

To leave a 65 year old widow, who is well capable of managing her own affairs, reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, with one of whom there have been historical tensions, rather than placing her in control of her own resources, is not an appropriate form of provision.

The appellant widow was awarded an amount of $1.75M in lieu of the annuity provided under the will.

In the context of the relationship and marriage, taking into account the sustained and substantial contributions the appellant had made to the welfare of the deceased; the size of the estate; that there was no-one else responsible for the maintenance of the appellant; the appellant’s reasonable wish to relocate; and the absence of competing claims; the annuity provided to the widow under the will was not adequate provision for the proper maintenance and advancement of the appellant.

In relation to the express provision in the terms of the will, Brereton JA said,

“A wish to preserve “the assets that I have worked my whole life for” for the benefit of his children and grandchildren does not reflect a careful balancing of competing claims. The testator allowed this wish to preserve his estate intact to so dominate his decision-making as to fail to have sufficient regard to his obligations to his dutiful wife of 28 years.”

In finding the annuity inadequate, Brereton JA said,

“to leave a 65 year old widow reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, rather than placing her in control of her own resources, is in this day and age not an appropriate form of provision for a widow who is well and truly capable of managing her own affairs and when there have historically been tensions between her and at least the first respondent. However reliable the respondents might be, this form of provision effectively obliges her to have an ongoing relationship with them, and to trust them to perform the obligation, and does not afford her the independence and self-reliance which, according to today’s community standards, a widow should have. It is not only rigid and paternalistic, but demeaning and controlling.”

The decision highlights the broad approach a court will take in such matters. What may at first glance be adequate and proper provision, may on careful analysis of all of the facts, be quite inadequate and altered.

In ideal circumstances, wills should be made after careful consideration of all of the relevant facts, with sound advice and guidance.

Contact us for any assistance in making a will or in getting advice on whether a will makes proper and adequate provision.

The Importance Of A Will – 5 Critical Reasons Why You Should Have A Will

importance of a will

The importance of a will- do you really need a will?

The most common answers to the question “Do you have a Will?” is always either “I don’t own anything”, “I’m too young to have a Will” or “I don’t need one. Everything can go to my husband/wife”.

In response to these comments, the team here at Rostron Carlyle Rojas would say, “A Will doesn’t just divide your assets, it can set out what is to happen on your death including your burial and organ donation preferences”, “You’re never too young to have a Will* and “Not necessarily, your assets could go to the government”.

Despite the varying and arguably frightening answers (the latter seems somewhat alarming) that one could respond to these statements, including the internal eye roll, the sentiment will always be the same, the above positions don’t render having a Will pointless.

The importance of a will (a case study)

By way of example, in the recent case of Re KH (deceased) [2017] 2 QDR 600 the estate of a Japanese national who died in Japan, but left property in Queensland (up to $1.5M in bank accounts) without a Will (in Australia or Japan), was left to consider (with the assistance of the District Court) whether the property in Queensland should be dealt with under the succession provisions of Japanese legislation, or be distributed in accordance with the Queensland Legislation (Succession Act 1981 (Qld)). In the circumstances, the court held that the Queensland property would be distributed in accordance with the Succession Act as opposed to the Japanese succession legislation.

This case succinctly demonstrates the importance of a will in for any adult.

To this end, we consider there are 5 critical reasons (and many more) as to why everyone should have a Will, no matter your age, financial, or marital status, or nationality, we consider it is integral for the following reasons:

  • If you don’t have a Will you are considered to die “intestate” which will mean, most likely that:You will not be able to influence who will benefit from your estate – your assets could be shared with relatives you do not wish to benefit or in some circumstances, your assets could be distributed to the government;
    • You will not have any influence over who can administer your estate – this will usually be a third party who has no or limited knowledge of your personal circumstances, also known as the public trustee;
    • Your estate may take an extended period of time to administer (compared to the circumstances if you had a Will); and
    • The cost to administer your estate will be significantly higher (than if you had a Will),
    • You will be able to dictate how and to whom you would like your estate distributed (you could even make a provision for a charity, a donation to your alma mater, or even cater for your furry friend);
  • You may be able to reduce the amount of conflict relating to your estate by defining your wishes (hopefully, unfortunately no guarantees can be provided in this regard);
  • You will be able to assist in the efficient and effective administration of your estate; and
  • It is a cost-effective exercise that will potentially reduce the cost in administering your estate in the back end and reduce the likelihood of a reduction in the inheritance to your beneficiaries.

If you would like to discuss further on the importance of a will feel free to, contact the team at Rostron Carlyle Rojas for some friendly discussions.

*Unless you’re under the age of 18.

The Rectification of Wills

What happens when the intentions of the testator are not reflected in the will?

This situation can arise from many reasons-but more commonly from poor drafting or miscommunication.

This arose in Rose v Tomkin & Ors (2017) QCA 157, where the Court had to consider the terms of a will dealing with the residuary estate.

The current rectification power is contained in s 33 of the Succession Act 1981 (Qld) which provides:

S.33 Court may rectify a will

(1) The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the testator’s intentions because—

(a) a clerical error was made; or

(b) the will does not give effect to the testator’s instructions.

In order that the power to rectify a will be enlivened under s 33 of the Act, a party is required to satisfy the Court that the Will did not carry out the testator’s intentions because the terms of the Will did not give effect to their instructions and wishes. That intention must be examined as at the date of the will, not the date of death.

The legal principles in respect of the rectification power in s 33(1)(b) of the Act may be summarised as follows:

  • The Court must ascertain the testator’s intention, that is, the actual intention of the testator reflected in the instructions given by the testator, not what would probably have been the intention in the circumstances that eventuated.
  • The Court must construe the provision of the will sought to be rectified.
  • The Court is required to compare the relevant provision of the will properly construed with the testator’s intention as ascertained.
  • The Court must be satisfied the relevant provision of the will does not carry out the testator’s intentions because it does not give effect to the testator’s instructions and that rectification in the terms sought would give effect to those instructions.
  • The Court must be so satisfied on the balance of probabilities, on clear and convincing proof.

The Court found after reviewing the evidence before it, as to the instructions given for the will that “the Will did not carry out Ms Jones’ intentions because it did not give effect to her instructions that her half interest go to her children. The Will was only capable of achieving the result that her children received a half interest in the event that her partner’s will was (and remained) in the same terms. The Will as drafted was not capable of guaranteeing that a half interest pass to them. But it is evident that Ms Jones’ instructions were to safeguard her children’s inheritance without qualification. That is consistent with the advice given to her by her solicitor to sever the joint tenancy.”

Having found that there was clear and convincing proof that the will did not carry out the testatrix’s intentions because it failed to give effect to her instructions, the Court ordered that the will be rectified

If you have any queries in respect of these matters please do not hesitate to contact us.

The Pitfalls of Do It Yourself Wills

coming soon

The purpose of drafting a will is to ensure that your assets are distributed according to your wishes when you pass away. As such wills and estate planning may appear straightforward particularly since will kits can be purchased from your local newsagent; However, these do it yourself (DIY) wills may result in legal issues being overlooked with unforeseen or unintended results.  Such results may lead to costly, stressful and complicated disputes which could have been avoided had the will maker obtained professional advice.

A recent example of a will which had unintended consequences is the case of Masci v Masci [2015] QCA 245. The facts of the case can be summarised as follows:

  • Mr and Mrs Masci had no children together, but both had children from earlier relationships;
  • Together they drafted a joint will which essentially provided that:
    • one of Mr Masci’s children and one of Mrs Masci’s children were appointed as joint executors;
    • the survivor of them to live in the family home until their death; and
    • the distribution of the assets on the death of the survivor, so that Mr Masci’s children would receive 50% of the assets and Mrs Masci’s children would receive the other 50%.
  • On 7 February 2012 Mr Masci passed away;
  • following Mr Masci’s death Mrs Masci sold the family home on the basis that the home was owned as joint tenants and as such she automatically became the sole owner of the property on Mr Masci’s death; and
  • Aside from the sale of the family home, disputes also arose surrounding the terms of the will and the intention of the parties.

To resolve these disputes, the Court had to decide whether Mr and Mrs Masci intended to:

  • make a mutual will and create a binding contract between themselves not to change their wills; and
  • sever the joint tenancy of their house, with the effect that they would own the property as tenants in common and that their interest would form part of their estate and accordingly be dealt with under their will.

The Court held that there was an intention to create a mutual will, and that the joint tenancy had been severed. This meant that Mrs Masci did not inherit Mr Masci’s interest in the family home automatically, and Mr Masci’s interest was required to be dealt with under the terms of the joint will.

This proceeding resulted in two court cases spanning three and half years and costly legal fees all because Mr and Mrs Masci in drafting their wills did not take into account the effect of death on the joint-ownership of the family house.

In another recent case, Yu v Yu & Ors [2015] QSC 373 and following on from the decision in Re Yu [2013] QSC 322, which found that Mr Yu’s will consisted of a series of notes stored on an iphone, the court was required to determine whether $259,000 in insurance proceeds fell within Mr Yu’s ambiguous use of the word “cash”. If these insurance proceeds were cash it would form part of the remainder of the cash to be divided amongst the five beneficiaries; however if it was not cash it formed a part of the residue which was left to the executor. The court ultimately found that the $259,000 was not cash and therefore were not available for distribution to the five beneficiaries.

The lesson to be learnt from Mr Yu’s case is that the price of having a professionally drafted will is minor when compared with the many thousands of dollars that were likely expended by the parties in bringing the two applications to Queensland Supreme Court, the delay in finalising his estate and possibly the unintended consequence of Mr Yu not considering the distribution of his life insurance and superannuation funds.

Other issues which arise in DIY estate planning commonly include:

  • inappropriate executors ;
  • ambiguous terms;
  • provision for pets rather than leaving the pet to a caretaker;
  • putting impractical or onerous conditions before a beneficiary can receive their inheritance;
  • incorporating provisions dealing with life support and care whilst in a coma;
  • incorrect or non-existent provision for distribution of super and the transfer of powers as appointor under a trust deed;
  • incorrect execution and witnessing of the will; and
  • failures to consider issues with jointly held assets and their distribution;

As lawyers, we can guide and assist you in making your will and in dealing with difficult and complicated decisions to help avoid disputes and expensive court proceedings.

If you are interested in either having your estate plan reviewed or would like to make a will please contact us.