NSW How to Prepare Dying Father's Will?

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Michael m

Member
23 October 2014
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I have a father in law in the last stages of heart failure.
He has lived in Australia for more than 50 years and lived in a de facto relationship for 40 years, with 1 child.

He is an Austrian citizen still and has no will prepared and is fearful of people who discuss it with him.
What can be done or prepared to help his wife when the time comes?
 

Tim W

Lawyer
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28 April 2014
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  1. Factoring out his physical illness, does he have all his wits about him?
    (Or, in lawyer-speak - is he of sound mind such he has capacity to make a will?)

  2. You refer to his de facto and to his wife.
    Are they the same person, or different people?

  3. You can't force him to make a will.
    Believe it or not (and even though it's a really bad idea),
    he is free to die intestate if he chooses.

  4. Is there anything contentious about the estate (eg other relatives)?
 

Michael m

Member
23 October 2014
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1

His witts go in and out more out though
the wife is the same person
he has 1 brother in Austria also in ill health
 

Tim W

Lawyer
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28 April 2014
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It's important to remember that
it's a really bad idea to make big decisions
based on what somebody says on the internet.
It's worth consulting a lawyer - especially given the dual complexities of
his capacity being in question, and time possibly being short,
and even if his estate appears "simple".

You may also find it helpful to read for yourself about the Intestacy Rules.
Some useful information is here.
 

Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
Whether or not he can make a will?

1. Testamentary capacity (i.e. wits): it is fine if he drifts in and out of consciousness or if he is of poor mental health. The test is: (i) does he understand the nature of making a will and the fact that he is making a will? (ii) Does he comprehend roughly what his estate is? (e.g. can he remember how many houses he owns, whether he has any bank accounts, whether he has a large estate or a small one) and (iii) has he turned his mind to all the people who could reasonably lay claim to his estate? (e.g. family members, friends that he has maintained, children, de facto partner).

2. Get a medical certificate: where the will-maker is elderly, it is advised to get a doctor to certify as to his mental capacity to make a will.

How to make a will?

1. Hire a solicitor. Especially in this instance where he is elderly and he most likely has residency issues and possibly property overseas.

2. Have the lawyer go to your father in law and, in a private meeting, write down the instructions he gives the lawyer. You should not be giving instructions on his behalf, especially if you are a beneficiary. However, if you don't believe the will is likely to be contested, then you can be present and assist your father in law in giving the instructions.

3. The will needs to be witnessed by at least two witnesses. They should not be beneficiaries under the will.

If your father in law does not make a will, it is not fatal. Intestacy rules are quite fair and generally state that his estate goes to his spouse (or de facto partner which is counted as a "spouse" here) and children.
 
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