But making a Will does not have to be boring. It can be an opportunity to reflect your personality, your relationships and the things that matter most to you.

Some people have certainly embraced that idea:

• Englishman Roger Brown left part of his fortune to seven friends, on the condition that they use it for an alcohol-filled weekend in a European city.
• Singer Janis Joplin left US$2,500 for her friends to throw a wake in her memory.
• Marvel Comics editor Mark Gruenwald requested that his ashes be mixed with ink and used to print comic books.
• Pringles inventor, Fred Bauer, reportedly wished to be buried in a Pringles can.

While these wishes may be unusual, they demonstrate that a Will can be about more than simply dividing up your assets. It can be an opportunity to recognise the people who are important to you and communicate the wishes that matter most to you.

But there is an important catch: creativity cannot come at the expense of validity.

A Will is a legal document, and your wishes need to be expressed clearly and in accordance with the law. An unusual or complicated request that is unclear or legally ineffective may create uncertainty for your executor and beneficiaries and potentially lead to disputes.

Any gifts expressed with a condition should be carefully considered in light of legal advice to understand whether such condition is legally enforceable.

If you wish to leave an unconventional gift in your Will or include particular instructions, there are several ways you can do so.

Memorandum of Wishes

A Memorandum of Wishes is a non-binding document that accompanies a Will and provides additional guidance to your executor and trustees.

Unlike a Will, it is not legally enforceable. This means you can use it to express your feelings, thoughts, reasoning or wishes regarding the provisions of your Will or the administration of your estate, without creating additional legally binding obligations.

A Memorandum of Wishes can therefore be a useful way to provide further context or guidance to your executor or trustees. For example, you may wish to:

• detail your wishes for your funeral;
• explain how you would like your beneficiaries to use their inheritance;
• provide guidance to the guardians of your minor children about how you would like your children to be raised; or,
• leave non-binding instructions regarding the care or ownership of your pets.

Including these directions in a Memorandum of Wishes allows you to communicate your expectations while keeping them separate from the legally binding provisions of your Will.

Conditional Gifts

You may wish to leave a conditional gift in your Will. This is a gift that is subject to a specified condition.

There are two types of conditions gifts:

• Conditional precedent: an event or action must occur before the beneficiary becomes entitled to the gift; and
• Conditional subsequent: the beneficiary receives the gift, but their entitlement will come to an end if a specified event occurs.

While conditional gifts can provide a way to reflect specific wishes, they must be carefully drafted. A condition may be ineffective if it is uncertain, impossible to fulfil or contrary to public policy.

The consequences can also differ depending on the type of condition. If a condition precedent is invalid, the gift may fail and form part of the residuary estate instead. If a condition subsequent is invalid, the gift may take effect without the condition needing to be satisfied.

Examples of Conditional Gifts

Courts in Australia have considered several unusual conditional gifts, demonstrating why careful drafting is important.

In the NSW Supreme Court case of Hickin v Carroll & Ors [2014], a gift was made conditional upon the Willmaker’s adult children converting to a particular religion within three months of his death. Whether the condition was against public policy was a contested matter. However, the Supreme Court deemed that restraining someone’s religion is only contrary to public policy if it limits the parental right to raise a child in a specific faith. Because the condition was held to be valid, the beneficiaries lost their gifts when they failed to comply.

An example of a failed condition subsequent gift occurred in the case of Hibbit v Ziade [2022] which concerned a gift of a residence and its contents to beneficiaries “in return for caring for my two cats”. It was argued that the beneficiaries would not receive the gift until the cats had died. The Court rejected that interpretation and found that the gift vested immediately, avoiding the practical difficulties that a deferred gift would have created.

These cases demonstrate that while conditional gifts can be an effective way of expressing testamentary wishes, the wording and practical effect of a condition matter. What may seem straightforward when written into a Will can become considerably more complicated when its meaning is tested after death.

Make it Personal – But make Sure it Works

Making a Will does not need to be a daunting or purely practical exercise. Whether your wishes are traditional, sentimental or a little unconventional, your Will gives you an opportunity to communicate what matters to you and make your wishes known.

The important thing is to make sure those wishes are expressed clearly and legally effectively.

Contact us to discuss all your wishes and how to put them into effect.

The post Will Power appeared first on Tony Kelly Lawyer & Estate Planner.

Choosing the right person or persons to act as your attorney is an important decision. Your attorney may have significant authority over your affairs, so it is important to understand the different types of Powers of Attorney and consider which arrangement is right for you.

What is a Power of Attorney

A Power of Attorney is a legal document that allows you to appoint a trusted person to make financial and/or personal decisions on your behalf.

Putting a Power of Attorney in place means that, if circumstances arise where you cannot attend to your affairs yourself, the person you have chosen will step in and act on your behalf. This may include managing your finances, dealing with your property or arranging personal services and support.

What are the types of Power of Attorney

There are two main types of powers of attorney to consider in Victoria;

1. General non-enduring Powers of Attorney

A General non-enduring Power of Attorney allows you to appoint an attorney to make financial and/or personal decisions on your behalf for a specified period or purpose. Importantly, it does not continue if you lose decision-making capacity.

This can be useful where you need someone to act on your behalf temporarily or in particular circumstances. For example:

• Extended overseas travel: If you intend to travel overseas for several months, you may wish to appoint an attorney to manage payment of your bills, banking or matters relating to your property while you are away.
• Temporary illness or hospitalisation: If you are buying or selling property but are unable to attend settlement or sign documents yourself, you may appoint an attorney to act on your behalf for that transaction.
• Business or financial matters: If you are unable to attend to a particular business or financial matter yourself, you may appoint an attorney to deal with that matter on your behalf.

A General non-enduring Power of Attorney can be tailored to specify when it begins, the decisions your attorney can make and when the appointment ends. If you wish for your attorney’s authority to continue if you lose capacity, an Enduring Power of Attorney may be more appropriate.

2. General Enduring Powers of Attorney

An Enduring Power of Attorney allows you to appoint someone to make financial and/or personal decisions on your behalf, including if you lose decision-making capacity. This can be particularly important when planning for the possibility of illness or injury that may affect your ability to make decisions in the future.

Depending on the authority given to your attorney, they may be able to:

• manage your bank accounts and pay your expenses;
• deal with your property and other financial assets; and,
• make decisions about your personal services, support and living arrangements.

The key feature of an Enduring Power of Attorney is that it will continue to operate if you lose decision-making capacity. This allows you to make an important decision while you have capacity: choosing who you trust to make financial and/or personal decisions for you, should you no longer be able to make those decisions for yourself.

One aspect to note is that a Power of Attorney for financial and personal matters is also distinct in Victoria from an Appointment of Medical Treatment Decision Maker, which covers medical decisions.

Who can be an Attorney

Choosing who to appoint as your attorney is an important decision. Your attorney should be someone you trust to act honestly, responsibly and in accordance with your wishes and best interests.

You may wish to consider;

• whether the person understands your wishes and values;
• whether you trust them to manage your financial affairs responsibly;
• whether they are likely to be available to assist you; and
• whether they have the time, ability and willingness to take on the responsibility.

In Victoria, you can appoint up to four people to act as your attorneys. If you appoint multiple attorneys, you can specify how they are to exercise their authority. For example, you can require your attorneys to:

• act jointly: all attorneys must agree and act together;
• act severally: each attorney can make decisions independently;
• act jointly and severally: attorneys can act together or independently; or
• act by majority: a majority of all the attorneys must agree before a decision can be made.

It is therefore important to consider not only who you appoint, but also how you want them to exercise their authority.

Planning ahead

Making a Power of Attorney is an important part of planning for your future. A carefully considered Power of Attorney can provide greater certainty for you and your family and help ensure your affairs are managed in accordance with your wishes if your circumstances change.

If you are considering making or updating a Power of Attorney, obtaining legal advice can help ensure the arrangement is appropriate for your individual circumstances. Contact us today to discuss making or updating your Power of Attorney.

The post Choosing your Power of Attorney appeared first on Tony Kelly Lawyer & Estate Planner.

AI can generate what appears to be a straightforward Will, identifying beneficiaries, appointing an executor and setting out how your estate should be distributed. However, a Will is more than a document that records your wishes. It is a legal document that must satisfy specific requirements to operate effectively after your death.

How to effectively utilise AI when preparing your Will

There is nothing inherently wrong with using AI as a starting point when considering your estate plan. AI can help you identify questions you may wish to discuss with a lawyer, organise information about your assets and family circumstances, or help understand some of the terminology involved in estate planning.

The risk arises when an AI-generated document is treated as a substitute for tailored legal advice. Your family circumstances, assets and wishes are unique. A properly prepared Will should take these circumstances into account and ensure your wishes are expressed in a way that is legally effective.

An AI model may not consider all of the potential legal issues associated with your Will, including:

• Taxation issues and how your Will can best be structured for tax-effectiveness, including the use of discretionary testamentary trusts;
• Asset protection concerns for you and your family;
• Particular circumstances that may require a tailored approach for a specific beneficiary, such as disability or being in receipt of an asset-tested pension; or
• Risks associated with excluding any beneficiary from your Will.

There is also a risk with any homemade Wills that they will not be executed correctly to meet the requirements of the Wills Act. This can lead to issues with proving valid execution to the Probate Office (meaning more time and expense for your Executors), and even a risk that a Will is found to be invalid in its entirety.

What happens when a Will is found to be invalid?

If a Will is found to be invalid, and you have no prior valid Will, your estate will instead be administered under the laws of intestacy, governed by the Administration and Probate Act. This means your assets will be distributed according to statutory provisions rather than the wishes you intended to express.

The courts have considered the validity of Wills in circumstances involving digital documents. For example, in the case of Peek v Wheatley [2025] the Court invalidated the deceased’s Will on the basis that its digital format did not reflect a definitive testamentary intention to act as a Will, but rather reflected a preparatory step in the process.

This case highlights an important point: creating a document that looks like a Will is not necessarily the same as creating a legally effective Will.

The financial costs of an AI-generated Will

One of the reasons people turn to AI tools is to avoid the cost of obtaining professional legal advice. However, the initial saving may not reflect the potential cost of problems arising later.

While an AI-generated Will may cost little or nothing to prepare, questions about its validity or interpretation can result in significant legal costs for your estate. This may include the cost of obtaining legal advice, gathering evidence, interpreting the document and, where necessary, making an application to the Court for a ruling on its proper meaning.

There may also be financial consequences associated in delays in administering the estate. Beneficiaries may have to wait longer before assets can be transferred or distributed, while property or other estate assets may remain unresolved while the legal position is determined.

The cost of a Will should therefore not be measured only by what it costs to prepare, but also by the consequences if it does not operate as intended.

The time, stress and administration for your loved ones

An AI-generated Will may appear appealing because it can be prepared quickly and from the comfort of your own home. However, the convenience of creating the document may shift the burden onto your loved ones after your death.

If a person dies without a valid Will, their estate may need to be administered under the intestacy provisions. This may mean that their assets may be distributed to people who were not their intended beneficiaries, which can lead to disharmony within the family.

The administration of an estate can take many months, and more complex estates may take considerably longer to resolve. What may take only minutes to generate can create months of additional time, expense and stress for your loved ones.

When it comes to your Will, convenience should not come at the expense of certainty. Contact our team today for a no-obligation consultation around your new Will.

The post AI-Generated Wills: Are You Really Protecting Your Family? appeared first on Tony Kelly Lawyer & Estate Planner.

When it comes to estate planning, the smallest details can make a huge financial difference. A recent case handled by our boutique firm of wills and probate lawyers in Melbourne highlights how careful planning, timely action, and expert guidance can protect your loved ones from unnecessary taxes and maximise inheritance.

The Client’s Situation

Our client was 93 years old, with his wife pre-deceased, three adult daughters, and a significant asset portfolio. Having already transferred a substantial public company share portfolio out of his Self-Managed Superannuation Fund (SMSF) into his own name, the remaining major asset was an inner suburban warehouse valued at approximately $3 million.

At this stage, he was in palliative care following a heart attack and had expressed that he felt it was “time” to go. With such circumstances, there was an urgency to ensure his assets were structured efficiently to protect his family.

The Challenge

The warehouse property had not been transferred into his personal name because he had lost the title. He had been informed that replacing the title and transferring the property could be a lengthy process. Without timely action, the property could have remained “inside” the SMSF, which would have created significant tax consequences for his daughters upon his passing.

Had the property stayed in the SMSF, the Victorian Government Stamp Duty alone would have exceeded $300,000.

The Solution

We stepped in as his estate planning lawyers, replacing the title and transferring the property into his name efficiently and without delay. This proactive action saved the family $450,000 in taxes at just the 15% rate.

Shortly after the transfer, the client passed away. Thanks to the estate planning structures we had established, his daughters had multiple options for handling the warehouse:

• Retain the property as an asset within the discretionary testamentary trusts created in his Will.
• Sell the property capital gains tax-free and either take all or part of the sale proceeds or reinvest and distribute income to their children in a tax-efficient manner.

By comparison, if the funds had been invested through a standard discretionary “family” trust instead of one established via the Will, each child would have only a $500 tax-free threshold, with marginal rates up to 47% applied thereafter.

Key Takeaways

This case highlights why engaging an estate planning lawyer early is critical, particularly for clients with complex assets such as:

• Self-Managed Super Funds (SMSFs)
• Commercial or high-value property
• Public company share portfolios

Proactive estate planning allows families to:

• Avoid unnecessary tax liabilities
• Protect wealth for future generations
• Ensure assets are distributed according to the client’s wishes

Working with will and estate lawyers ensures your estate plan is carefully structured, legally sound, and tailored to your family’s needs.

Why Work With Our Wills and Probate Lawyers in Melbourne

Navigating the legal and tax implications of an estate can be complex. Our boutique firm provides guidance on:

• Estate planning and succession strategies
• SMSF asset transfers and tax minimisation
• Establishing testamentary discretionary trusts
• Updating Wills and binding death benefit nominations

By planning ahead, you can protect your assets, minimise tax exposure, and ensure your loved ones benefit exactly as you intend.

Take Action Today

Estate planning is about more than documents — it’s about safeguarding your family’s financial future. If you want personalised and bespoke guidance on how to structure your estate, speak to our estate planning lawyers today.

Contact Tony Kelly Lawyer now.

The post How Estate Planning Lawyers in Melbourne Saved a Family $450,000 appeared first on Tony Kelly Lawyer & Estate Planner.

What are chattels?

To put it simply, ‘chattels’ refer to personal property or movable assets that are not land or real estate. In legal terms, chattels are tangible items that can be physically moved and transferred from one person to another, such as goods, furniture, or possessions. They are different from real property, which includes fixed assets, like land or buildings. Chattels also consist of items like jewellery, vehicles, art pieces, or family heirlooms.

The Administration and Probate Act 1958 (Vic) defines “personal chattels” as including:

“carriages horses stable furniture and effects (not used for business purposes) motor cars and accessories (not used for business purposes) garden effects domestic animals plate plated articles linen china glass books pictures prints furniture jewellery articles of household or personal use or ornament musical and scientific instruments and apparatus wines liquors and consumable stores but does not include any chattels used at the death of the intestate for business purposes nor money or securities for money”.

The main feature of chattels is how easily they can be transported, along with their clear difference from real property. The above definition also distinguishes chattels from items used in the conduct of a business. When a person passes away, the chattels they owned become part of their estate and must then be distributed in accordance to the terms of their Will or, in cases of intestacy, in accordance with the laws of succession.

Why is it essential to know the relevance of chattels?

Chattels possess great significance when an estate is being distributed after death, as they can have a substantial effect on the deceased person’s family and loved ones. An individual may normally leave directions as to how certain items are to be distributed, often to safeguard personal belongings, sentimental items, family heirlooms, or the like.

In situations of intestacy, Victorian law gives directions for distributing chattels to guarantee that personal property is justly dispensed according to the family relationships. Usually, chattels are given to the surviving spouse or children. This approach is taken to make sure that the personal items of the deceased person are passed on to those that were closest to them, or those who were most likely meant to inherit the items if there were a Will.

Cases addressing chattels

Numerous courts have had to identify whether specific items would constitute chattels. In the case of Smith v Smith (2012), a dispute arose over a family heirloom which held significant sentimental value. The heirloom, a painting, was categorised as a chattel but such characterisation was contested by the heirs. The Court held that despite its value and significance to the family, the painting was a chattel due to its mobility. A chattel is a moveable item that is not fixed to the property.

Other items that are much larger and less mobile may be more challenging to distinguish. McCauley v McCauley (2007) addresses this issue. This case concerned a dispute over whether certain fixtures and improvements on a property, being a pool and decking, should be considered as chattels or part of the real property. The court held that these items were not considered as chattels due to their permanent attachment to the land. It was highlighted that an item that is permanently fixed to the land or a building revokes itself from being considered a chattel. The pool and decking in this case were intended to stay in place as part of the property and therefore were considered as real property.

Bequeathing chattels to beneficiaries

It is essential to note that a testator (Willmaker) possesses the choice to bequeath specific chattels in their Will, such as the examples mentioned previously. Alternatively, the testator has the option to refer to a non-binding list that is kept separate to their Will, outlining the distribution of the items. Granted that the list is not legally binding, it does supply direction and guidance to the executor to aid in ensuring that chattels are distributed in accordance with the testator’s intentions.

In many cases, clients would bequeath chattels to a group of beneficiaries, like their children, in order for them to divide between themselves. While this approach works well when the beneficiaries can easily come to an agreement on how to divide them, it is still best for the testator to provide some general guidance in order to lessen the chance of possible disputes down the line. We recommend that testators include a specific procedure as to how chattels are to be divided in the instance that beneficiaries cannot come to an agreement, such as ‘drawing straws’ to determine the order in which beneficiaries can select chattels.

Testators may also consider whether a beneficiary’s portion of the residuary estate should be modified according to the value of the chattels they have inherited. To give an example, if one beneficiary receives an item more valuable than the other, the testator might choose to reduce their share of the residual estate to ensure the distribution among all the beneficiaries avoids any unintended inequalities.

Conclusion

The classification of property as chattels is crucial for determining how items will be distributed after someone’s death. Courts look into the nature of the property and the circumstances in question. Various aspects would be considered by the Court such as the item’s use, value, and relationship to the real estate. By understanding the importance of chattels and addressing them appropriately, legal practitioners can prevent potential disputes between family members.

The post What are ‘chattels’ and why are they important? appeared first on Tony Kelly Lawyer & Estate Planner.

At law, pets are considered a ‘chattel’, or an item of personal property. We know that pets are so much more than just an item, however. In this blog post, we set out your options for deciding what happens to your pets when you die.

Bequest in a Will

As a pet is a ‘chattel’ for the purposes of your Will, you can bequeath them to family or friends as you see fit. For beloved family pets, this could mean bequeathing your dog or cat to one of your children when you and your spouse have died.  You may also have a close friend or neighbour who is familiar with your pet and would be happy to take on their care if something happened to you. We recommend discussing such a bequest with the intended beneficiary first, to ensure they are willing to take on the responsibility. A beneficiary can always say no to a gift in a Will, and it is important to ensure that your pet is not left ‘high and dry’ in such circumstances.

A Trust for your pets?

You may have seen sensational headlines in the media, such as “Woman leaves $4.3 million fortune to her cats and dogs”. In Victoria, you cannot leave assets to an animal under your Will, as they are not a legal person who can inherit the property. You can, however, set up a Trust for the purposes of caring for your pets.

You would need to appoint a trusted person to be the Trustee of the Trust, such as a friend or relative. You may leave an amount on Trust for your pet based on your estimate of their expenses over their lifetime, such as food and vet bills. If you are intending to leave a large sum in Trust for your pet, it is important to think about who will receive any excess funds on their death. You may, for example, wish for any excess Trust funds to be donated to an animal charity.

If you have bequeathed your pet to a friend or relative, you may wish to consider making a bequest to such person elsewhere in your Will as a token of your appreciation. Such funds would not be directly for the use and benefit of your pet, but instead would be a gesture of thanks to the person who will care for them.

Memorandum of Wishes

We often recommend that clients make a Memorandum of Wishes to cover non-binding instructions or guidance which they wish to leave with their Will. This document can also include non-binding instructions as to the care of pets, for example:

• If my husband and I both die while our children are still under eighteen, we have appointed my sister as their Guardian. We would like our family cat Coco to stay with our children for emotional support.
• It is my wish that my dog Ringo is rehomed with a loving family. I would like my Executors to first ask if any of my children would like to take him, but if not, I would like him to go to a young family with a backyard.

Rehoming your pet

You may not have a suitable person in your life to help care for your pets on your death, but you still wish for them to be looked after. Several organisations offer programs where you can register your pet during your lifetime to be taken in by such organisation on your death.

One example is the RSPCA Home Ever After program. In this program, you register each of your pets with the RSPCA, including details of their medical conditions, likes and dislikes. You also make a direction in your Will that you give your pets to the RSPCA to rehome using the service. The RSPCA will then provide you with resources to ensure your Executors know what to do on your death. There is no cost for the service, but the RSPCA asks that you consider making a donation to the organisation in your Will as thanks.

Our furry friends (and feathered friends, and scaly friends) can be as much a part of our families as our human relatives. Even though they may be treated differently at law, you can still ensure that your Estate Plan provides the best possible future for your pets. Our team is on hand to update your Will, create a Memorandum of Wishes for you, or assist you in any way to give you peace of mind. Contact us today for a no-obligation discussion.

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