Christine Smyth Blog

Many clients approach their will as a “set and forget” exercise.  There is much commentary as to why testators ought to review their wills regularly.  Much of this commentary centres on the changes in financial circumstances.  What is not commonly contemplated, are changes relating to the appointment of executor.  Where it is considered, the focus is usually on the death of the executor.  However, what clients often overlook, is like them, executors are living longer and with that, the incidence of lost capacity increases.  This is especially the case where the executor is over 65.[1]  Testators should be mindful, that when you appoint a person as your executor, and that executor loses capacity, the executor’s Enduring Power of Attorney, may be the one who ends up administering your estate.  The decision of In the Will of Bob Wild Deceased [2002] QSC 200, considered this very issue.  There the Supreme Court of Queensland considered various provisions of the Powers of Attorney Act 1998, Succession Act 1981, Trusts Act 1973 and Uniform Civil Procedure Rules 1999.  In doing so it confirmed the Supreme Court has the power to Grant Probate to the Enduring Power of Attorney of an incapacitated executor.

It is important for you to note there are many significant differences between each of the States and Territories as to the powers exercisable by a power of attorney and rules relating to the granting of Probate. Before you make any decision with respect to the appointment of executor you should seek legal advice specific to your concerns.  These differences between the States and Territories were highlighted in the recent South Australian decision of In the Estate of Keith Dudley (deceased) [2013] SASC 22 . There, cross border issues were significant in determining whether a person who was resident in New South Wales, could apply for a Grant of Probate in South Australia relying upon an enduring power of attorney granted in South Australia by an executor who was resident in Queensland who had lost capacity.

The Gold Coast is primarily populated by people who have resettled from interstate. As one of the oldest firms on the Gold Coast, Robbins Watson Solicitors has significant experience in representing clients whose affairs traverse multiple jurisdictions.  If you have assets in other jurisdiction we recommend you consult us with respect to addressing the issues this creates in your estate planning requirements.

[1] See http://www.fightdementia.org.au/understanding-dementia/statistics.aspx

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