Planning for the Future: Why Estate Planning is Essential

The Importance of a Will

A Will is the cornerstone of any estate plan. Without one, the laws of intestacy dictate how an estate is distributed, which will likely not align with the deceased’s intentions, as they are based on statutory formulas surrounding your personal family circumstances. The case of Boscolo v Australian Unity Trustees Ltd as Admin of Estate of Boscolo[1] illustrates the challenges faced when a person dies intestate. The absence of a Will and application of the statutory entitlements led to disputes, with the Court asked to determine whether the intestacy laws provided adequate provision for the deceased’s dependants. The Court ordered one applicant’s share of the estate be increased from 9% to 30% of the total value to ensure fairness. A Will in those circumstances may well have averted the need for beneficiaries to challenge the application of the intestacy laws and therefore the value of the estate spent on costs associated with the proceedings would not have been lost.

The risks of informal or unsigned Wills are also significant. There are numerous cases where it has been argued that an unsigned “Will”, or a document which does not meet the formal requirements for a Will, should be accepted as a valid indication of the deceased’s intentions, but it is very difficult to have these accepted by a Court. All of these cases underscore the importance of putting in place a formal Will to avoid disputes and ensure the deceased’s wishes are legally enforceable.

Enduring Powers of Attorney and Guardianship

As discussed in Part 1 of our Estate Planning Series, an EPA constitutes an appointment to manage the financial affairs of the donor, while an EPG is the appointment of a person to make personal, lifestyle and treatment decisions. These documents are essential to protect your interests if you lose capacity. For further details, Part 1 can be accessed here.

These documents also have the added protection that there are statutory obligations on the parties appointed as the attorney or guardian in the exercise of their powers, with penalties for a breach of those obligations or abuse generally.

The case of AA, Re[2] demonstrates the importance of appointing responsible and trustworthy individuals as your attorney and guardian. The circumstances involved the 3 sons of AA where 2 of the sons were appointed guardians and attorneys and application was made to the SAT that the appointees were not acting in the best interests of the donor, by engaging in unauthorised property transfers, abuse of the donor’s credit card, failing to provide proper medical care and access to medical professionals for the donor and what the applicant described as the appointees having “lost sight of the donor’s best financial interests”.

As you might imagine, there was a significant underlying family conflict, but the decision provides an example of the recognition that people appointed as attorneys and guardians have substantial fiduciary and other obligations to act in the best interests of the donor and those protections also give rise to an ability for their actions to be held up to scrutiny in a Court, which would not exist in circumstances where an EPA and/or EPG had not been effected.

The State Administrative Tribunal (SAT) revoked both the EPA and EPG and the appointments under them due to concerns about misuse of the powers and to safeguard AA’s interests.

It also highlights the need for careful selection of appointees to protect the donor’s welfare and interests. Part 2 of our series discusses the increasing public concern over the Public Trustee’s ability to deliver services. This article can be accessed here.

In AF,[3] the SAT also addressed allegations of financial exploitation by an enduring attorney and guardian, reinforcing the principle that appointees must act in the donor’s best interests.

Along the same line, in AR, Re,[4] the SAT upheld the validity of the appointments, which had been sought to be overturned with allegations of impropriety. The appointee was able to show evidence of their conduct being in the best interests of the donor and obtain confirmation from the SAT the allegations were not supported and to continue to act.

Advance Health Directives

An AHD allows you to make decisions about your future health care by recording your directions about your care and treatment in circumstances which may arise in the future.  This assists in providing clarity and certainty in critical medical situations, with a view to your wishes being adhered to and avoiding the need for decisions by family members, without consideration for your stated wishes.  It must be made when you have the mental capacity to make medical decisions.

The case of NJ, Re[5] illustrates the significance of an AHD in end-of-life-decision-making. NJ’s AHD explicitly recorded her refusal of life sustaining treatment, but was challenged by her children on the grounds she did not have the requisite mental capacity at the time and certain situations were not covered by the AHD.  The SAT upheld her capacity to make the AHD, but confirmed the AHD only applies to the circumstances listed, reinforcing the need for the AHD to cover all possible scenarios which might arise.

The importance of specificity in AHDs is further highlighted in AL, Re.[6] where the SAT stressed treatment decisions in an AHD must be clearly contextualised to be valid and binding. This ensures the individual’s intentions are precisely followed, avoid ambiguity and disputes.

Planning is not just about protecting assets, it is also about ensuring your personal wishes are respected and your loved ones are spared unnecessary distress and endeavour to minimise the prospects of argument. A comprehensive estate plan, including a Will, EPA, EPG and AHD provides clarity, reduces the risk of disputes and provides the best means to safeguard your wishes.

The cases discussed above underscore the importance of these instruments and the potential consequences of neglecting them. By taking proactive steps, you take the best opportunity to ensure your interests and legacy are managed according to your wishes, providing peace of mind for yourself and your family.

MPH Lawyers can assist in preparing these documents to ensure your wishes are accurately recorded.

[1] [2023] WASC 391.

[2] [2025] WASAT 2.

[3] [2021] WASAT 58.

[4] [2021] WASAT 137.

[5] [2025] WASAT 35.

[6] [2017] WASAT 91.