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NSW Outdated Wills and Power of Attorney - Informed of Changes?

Discussion in 'Wills and Estate Planning Law Forum' started by Richard Harrison, 21 January 2015.

  1. Richard Harrison

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    My son and I are both nominated on my sisters will and enduring power of attorney.
    As there is some ill feeling with my sister I feel she could change her documents, in favour of her friend (no relative). Do we get informed if the will and enduring power of attorney is altered, eg. deleting us from the documents?
    If she has, are there any actions that I can take?
     
  2. Tim W

    Tim W Lawyer

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    You can resign as a holder of a Power of Attorney at any time.
    You just write to the principal (in this case, your sister),
    and say, in plain language, that you do not wish to continue
    holding a Power of Attorney for her.
    You are not required to give a reason.
    For clarity and for avoiding confusion*, I suggest that it's better
    for each PoA holder to do this separately.

    In the alternative, your sister can simply revoke the Powers of Attorney she has given you.
    It's best to get a solicitor to help with doing this.

    When you say "...nominated on my sister's will..." - does this mean as executors?
    If so, then it is possible to "renounce" your role as Executor.
    It's best to get a solicitor to help with doing this.

    She gets to choose who replaces you. You can suggest somebody, but she is not obliged to take any notice.


    --------------------
    * Lawyer-speak for this is "for avoidance of doubt"
     
  3. Richard Harrison

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    Thanks Tim.
    I have to be more concise. I am the executor of her will. My son, daughter and I are beneficiaries of her will. My son and I have enduring power of attorney.
    So if she decides to change her will and/or enduring power of attorney, do I get notified from her solicitor that she has done this?
    The ill feeling comes from my sister and she might be spiteful and change something.
     
  4. Tim W

    Tim W Lawyer

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    OK.
    For clarity, it's important to understand a couple of things.
    1. Powers of Attorney only operate during the lifetime of the principal.
      While the principal is alive, and has (mental) capacity,
      the principal can vary, attach conditions to, or revoke a Power of Attorney.
      Powers of Attorney cease upon the death of the principal.
      Where a solicitor is helping, then I would expect that solicitor
      to notify any "outgoing" Power of Attorney holders.

    2. Often (but not always), the PoA holder(s)* is/are subsequently appointed as executor(s).
      They don't have to be the same person.
      Where a solicitor is helping, then I would expect that solicitor
      to notify an (any) "outgoing" nominated executor(s).

    3. Beneficiaries are people who receive a distribution from the estate.
      Although it occurs often, and is often how disputes start,
      a testator** has no duty to notify would-be beneficiaries.
    Which is the one you are most concerned about?

    --------------------
    * Holders of a Power of Attorney are correctly called "attorneys".
    But the I dislike that word in this context because of its tendency to cause confusion.
    Blame American television....

    ** A person making a will
     
    Michael T likes this.
  5. Richard Harrison

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    Thanks Tim,
    Concerned about 1 & 2 but if as you said 'I would expect that solicitor to notify' then at least I will know if any changes are made. So for now this answers my question.
    Hopefully for everyone concerned she doesn't change anything.
    Thanks again
     

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