We recently had a client die suddenly, a few days after his second covid injection. On checking his will and statement of wishes we found that they were out of date and had not taken into account that his estranged wife had moved on to a new relationship. It makes sense for you to check your will and statement of wishes every few years and particularly after a significant change in family circumstances.

It also makes sense to have an Enduring Power of Attorney for personal welfare and Enduring Power of Attorney for property, in case you are incapacitated in the future. These documents would be prepared by your family lawyer, but as chartered accountants, we are often called upon to act as trustees for trusts and executors for estates. Here a few things to know.

A will is a document which outlines where you want your belongings to go and how your children and other dependents will be looked after, when you die. You don't need to have lots of money or valuable possessions to have a will. My husband has a clause in his will for his Pathfinder game sets to be passed to someone other than me, because they will appreciate them better!

You can decide who will execute your estate, an executor , and who will be testamentary guardian of your children and other dependents. Choose these people carefully, that they will be capable and willing to carry out your wishes. A relative of mine is co-executor for her friend's estate. She is doing all the work, preparing the properties for sale, while the other co-executor is doing very little.

When you enter into a civil union or marriage, your will is automatically revoked, unless you clearly state that you took the civil union or marriage into account. When you separate, your will is not revoked until separation orders are made by the court or you have legally dissolved the relationship. You should also review your will when you enter into or exit a de facto relationship or when you have children.

If you die intestate, or without a will, then the Administration Act decides how your property is distributed. Distributions are made in set proportions to a surviving spouse/partner and immediate family, or near living relatives. This may not be what you or the family expect. If you have no relatives, then your property goes to the State.

Even if you make a will, it can still be contested by people who think they are entitled to inherit from you. Make sure you get expert legal advice to draw up your will.

A memorandum of wishes is a letter to provide guidance for trustees of a trust that you have settled. It may contain instructions on how the trust's property should be invested, what the income and capital of the trust should be used for, beneficiaries requiring special treatment, in what circumstances the trust should be wound up. For instance, if you have a special needs child, they may need a greater share of the trust's income to pay for their medical bills and living costs.

You should review your memorandum of wishes regularly, particularly when you have a change in family or relationship circumstance.

An EPA allows a person to act on your behalf, your attorney, to make decisions for you when you can't. In this context, your attorney is not necessarily a lawyer, but it could be a trusted business partner, relative or friend. You can appoint different people to be attorneys for your property, such as bank accounts and investments and attorneys for your personal care and welfare, such as choosing what medical care you need and where you should live. If you appoint multiple attorneys, you should clearly state if they need to act jointly (agree on all decisions) or severally (act alone).

The EPA should be in place before you need it, because situations may arise quite suddenly. It was incredibly useful to our accounting firm, when Brian came down with Guillain-Barr é Syndrome in 2018. Murray was able to continue to pay bills for the firm and for Brian's family, act as trustee on Brian's behalf.

A personal care and welfare EPA comes into effect when a doctor signs a certificate confirming you are mentally incapable. A property EPA can be effective immediately or only if mentally incapable.

If you don't have an EPA in place and you become incapacitated, then an application can be made to the Family Court, but the judge will not know who you put your trust in. You can also sign a general power of attorney, to cover periods of temporary absence while overseas, but they have no legal effect if you become mentally incapable.

Choose your attorney(s) carefully, because you will be relying on them to take care of you and your family when you are unable to.

If you want to know more about estate planning, memorandum of wishes and enduring powers of attorney, please contact your family lawyer.

- Serena Irving

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Serena Irving is a director in JDW Chartered Accountants Limited. JDW is a professional team of qualified accountants, auditors, business consultants, tax advisors, trust and business valuation specialists.