Wills and Lifetime Planning

3 Matter Plans Included

ALERT - The 2026 Budget foreshadows tax changes that may be relevant to testamentary discretionary trusts. See Looking to the Future in the Reference materials folder.

The 2026 Budget foreshadows tax changes that may be relevant to testamentary discretionary trusts. See Looking to the Future in the Reference materials folder.
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Full Commentary - Wills (NSW)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Looking to the Future
- Electronic Signing and Witnessing
- 101 Succession Answers for New South Wales
  
  Including:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- 101 Costs Answers
- Papers and articles - Wills and estates
  - Estate planning - An exciting opportunity for small law firms
  - Executor's commission 1 - Executor's commission and the professional executor
  - Executor's commission 2 - Horns of a dilemma
  - Executor's commission 3 - A fiduciary duty
  - Improving written submissions - A paper by Judge Alan Troy
  - Plain language – A paper by the Hon. Michael Kirby AC CMG
  - To accept or not accept instructions in urgent will matters
  - Wills and estates - Death in the house
- Further information
Overview

A will is a document containing a person’s instructions for the distribution of their property and assets after death. If a person dies without a valid will, their estate is distributed according to the statutory rules of intestacy. Because a person who lacks testamentary capacity cannot make a ...
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Summary of the process

The usual steps in a will matter are:
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A. Getting the matter underway
- File cover sheet - Wills and lifetime planning
- To do list - Wills
- First steps
- Client details and verifying identity
- Retainer instructions - Wills and lifetime planning - For individuals
- Retainer instructions - Wills and lifetime planning - For couples
- Privacy collection notice
- Conflict of interest check
- Taking instructions for wills
  
  Obtaining written instructions is vital in a will matter. In some cases, the instructions may constitute an informal will. See Informal wills. The Retainer Instructions – Wills and Lifetime Planning – For Individuals and Retainer Instructions – Wills and Lifetime Planning – For Couples on the ...
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- Informal wills
  
  An informal will might be required if circumstances suggest a client may lose testamentary capacity or die before they can execute a formal will. Under s 8 of the Succession Act 2006 a court may admit a will that fails to meet the formal requirements to probate if it is satisfied that the ...
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- Testamentary capacity
  
  Although not often an issue, the first question for a lawyer to consider when preparing a will is whether the client has testamentary capacity. The leading authority concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549. In that case, Cockburn CJ held at 565:
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- Testamentary capacity checklist
- Initial letter to client enclosing costs agreement
- Letter to individual client to confirm instructions
- Letter to spouse clients to confirm instructions
- Costs
  
  Estimating the cost of preparing a will can be difficult. The extent of work the client will require is often unclear at the outset. While many wills are simple, the complexity of a client’s financial position or family arrangements can mean hours spent taking and confirming instructions and ...
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- Costs agreement - NSW
- Scope of work - Wills and lifetime planning
- Standard costs disclosure form for clients - Fees under $3000
- Time and costs estimates
- If required - Updating costs disclosure
  - Letter to client updating costs disclosure
  - Charge securing costs
  - Guarantee securing costs
  - Costs disclosure before settlement in litigation matters
    
    Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- If required - Advice to client on testamentary discretionary trusts
  - Letter to client advising on testamentary trusts
  - Benefits of testamentary discretionary trusts
- If required - Authority for deeds
  - Letter to solicitor with authority for deeds
  - Authority to solicitor to forward deeds
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    Confidentiality deed
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Mediation agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
B. Initial will considerations
- Formal requirements
  
  The formal requirements for a valid will, as set out in s 6 of the Succession Act 2006, are that:
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- Revocation and revival
  
  Revocation Validly executing a will revokes all prior wills regardless of whether or not the new will expressly provides for revocation: s 11 of the Succession Act 2006.
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- Executors and trustees
  
  An executor under a will is a trustee of the estate's assets. Executors hold the estate on trust, whether or not they are also appointed as trustees of specific trusts in the will. For example, if a beneficiary under a will cannot take their gift because they are under 18 years old or they do ...
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- Burial and cremation
  
  Consistent with their burden of burying the deceased, an executor has a common law right to possession of the deceased's body. The estate's administrator does not have this burden or right. Following the appointment of executors, the client often provides instructions as to burial or cremation in ...
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- Guardianship of minor children
  
  A direction in a will for guardianship of minor children is non-binding. If necessary, the Federal Circuit and Family Court of Australia can make a final decision about the care of children, based on the child’s best interests. A testamentary guardian acts jointly with a surviving parent: s 14(3) ...
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- Disposition of property
  
  The dispositions of property under a will can potentially involve consideration of:
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C. Other estate planning considerations
- Superannuation death benefits and nomination
- Binding death benefit nomination notice
- Testamentary discretionary trusts
- Special disability trusts
- Taxes and duty
- Blended families
  
  A frequent issue for testators in a second marriage or a relationship that includes children from both the current and a previous marriage or relationship is how to leave their estate to their current spouse or partner but also ensure that the children are provided for. There is an inherent tension ...
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- Family provision claims
  
  When giving instructions for a will, testators need to understand the possibility of a family provision claim against their estate. Section 59 of the Succession Act 2006 provides that if the court considers the deceased did not adequately provide for the proper maintenance, education, or ...
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- Intestacy
  
  Chapter 4 of the Succession Act 2006 determines the distribution rules for the estate of a person who dies without a will or leaves a will but does not dispose effectively of all or part of their property. In these circumstances, the deceased dies intestate and is referred to as the intestate, ...
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- Multi-jurisdictional estates and international wills
- Challenging the validity of a will
D. The will
- Wills for an individual
  - Individual will
  - Individual will with spouse as trustee
  - Individual will with blended family
  - Individual will creating testamentary discretionary trust
  - Individual will creating multiple testamentary discretionary trusts
- Wills for spouses
  - Client 1 will for spouses with client 2 as trustee
  - Client 2 will for spouses with client 1 as trustee
- Wills for blended families
  - Blended families
    
    A frequent issue for testators in a second marriage or a relationship that includes children from both the current and a previous marriage or relationship is how to leave their estate to their current spouse or partner but also ensure that the children are provided for. There is an inherent tension ...
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  - Individual will with blended family
  - Client 1 will for blended families with client 2 as trustee
  - Client 2 will for blended families with client 1 as trustee
- Wills creating testamentary discretionary trusts
  - Testamentary discretionary trusts
  - Individual will creating testamentary discretionary trust
  - Individual will creating multiple testamentary discretionary trusts
  - Client 1 will creating testamentary discretionary trust with client 2 as executor
  - Client 2 will creating testamentary discretionary trust with client 1 as executor
  - Client 1 will creating multiple testamentary discretionary trusts with client 2 as executor
  - Client 2 will creating multiple testamentary discretionary trusts with client 1 as executor
  - Family trust election, revocation or variation 2022
- Prompt comparing retainer instructions with draft wills
- Library of clauses, deeds, contracts, and codicils
  - Asset management clause
  - Assets - Quarantining assets from a nominated jurisdiction
  - Beneficiaries - Excluding beneficiaries - Some reasons for excluding beneficiaries
  - Beneficiaries - Separate fund for particular beneficiary - Clause to establish trust
  - Body - Burial in reserved plot
  - Body - Burial with modest funeral
  - Body - Cremation
  - Body - Funeral service location
  - Body - Medical research purposes
  - Body - Medical research purposes excluded
  - Body - Organs for donation or research purposes
  - Charity - Bequests to charity
  - Civil union - Will in contemplation of civil union
  - Codicil
  - Deed not to change will
  - Deed not to change will in favour of mortgagee
  - Deemed disclaimer of an interest under this will
  - Divorce - Clause in contemplation of divorce
  - Gift of business to employees
  - Gift to spouse with reasons for children of previous marriage
  - Guardians - Appointment of guardians
  - Guardians - Appointment of guardians when other parent has not survived
  - Home - Right of occupation of home
  - Hotchpot - Excluding hotchpot
  - Hotchpot - Including hotchpot
  - Life estate clause
  - Life insurance used for debts
  - Marriage - Will in contemplation of marriage
  - Monthly payment - Establish a monthly payment not an annuity
  - Mutual wills - Contract to make mutual wills
  - Option - Grant an option to purchase to a beneficiary
  - Pets - Gift of pets
  - Pets - Gift pets with trust provisions
  - Residue - Childs spouse, and grandchildren
  - Solicitor - Direction for appointment of solicitors
  - Solicitor executor - Clause to charge fees
  - Specific bequest of digital rights
  - Testamentary discretionary trust provisions - Concise
  - Testamentary discretionary trust provisions - Extensive
  - Testamentary discretionary trust provisions creating several trusts
  - Trustee - Separate trustee for minor beneficiary
- If required - Special disability trust - Deed, variation, and clauses
  - Special disability trusts
  - Special disability trust deed inter vivos
  - Special disability trust deed by will
  - Deed of variation for special disability trust
  - Clause to leave money or property via will to pre-existing special disability trust
  - Clause establishing special disability trust by will with trust deed annexed - Executors as trustees
  - Clause establishing special disability trust by will with trust deed annexed - Appointing trustees
  - Clause to establish special disability trust - Executors as trustees
  - Clause to establish special disability trust - Executors to appoint trustees
  - Clause to establish special disability trust and discretionary trust for a beneficiary - Executors as trustees
  - Clause to establish special disability trust and discretionary trust for a beneficiary - Appointing trustees
- Library of attestation clauses
  - Blind
  - Can read but unable to write
  - Can read but unable to write or make a mark
  - Can write but unable to read
  - Unable to read but can speak and understand English and can sign
  - Unable to read or speak English but can sign
  - Unable to read or write
  - Unable to speak or read English or write
- If required - Remote witnessing attestation clause
  - Witnessing via audio visual link
- If required - Multi-jurisdictional estates and international wills
  - Multi-jurisdictional estates and international wills
  - International will certificate
E. Execution
- Letter advising client that documents are ready for signing
- Letter reminding client that documents are ready for signing
- Signing the will
  
  Under s 6 a will must be signed by:
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- Evidence of signing
  
  The purpose of having witnesses to a will is so they can give evidence of the circumstances of the will’s execution. Three practices provide good evidence that a will has been properly signed and executed:
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- Gifts to witnesses
  
  A gift in the will to one of the witnesses is void unless:
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- Solicitors as witnesses
  
  Commonly, a solicitor who has drawn up a will is also a witness to its execution. This is appropriate and even optimal as a solicitor makes an excellent witness. However, a solicitor who receives a benefit in the will or is appointed as an executor or substitute executor cannot be a witness.
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- Witnessing via audio visual link
- Testamentary capacity checklist
- If required - Sending a will to a client for signing
  - Sending a will to a client for execution
    
    If a client wishes to have the will sent to them for execution, it is helpful to provide them with assistance regarding the process. Otherwise, the will may not be properly executed and not be valid. The precedent Enclosure – Instructions for Signing on the matter plan can be sent to the client ...
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  - Letter to client with will to sign
  - Instructions for signing
F. Finalising the matter
- Storage
  
  A will that is to be kept by the firm in safe custody is entered into a safe custody register and placed in a trackable envelope. It should never be kept only on the file. The testator should be provided with a copy of the will that includes the firm’s contact details either on a cover sheet or in ...
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- Revising the will
  
  Testators should be encouraged to review their wills regularly. While not significant in the case of small estates or when a testator’s estate is to pass to their spouse and then their issue, a review may be relevant in other situations. Events that may lead to a change of a will include:
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- Letter to client finalising the matter
- Example invoice incorporating notification of client's rights - NSW
- Invoice recital - Wills
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

ALERTS - Nil
Full Commentary - Powers of Attorney, Appointment of Enduring Guardian, and Advance Care Planning (NSW)
Reference materials
- AI Prompts
  
  An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- Looking to the Future
- Electronic Signing and Witnessing
- 101 Succession Answers for New South Wales
  
  Including:
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- 101 Costs Answers
- Recognition of Interstate Powers - Comparative Table
- Papers and articles - Wills and estates
  - Estate planning - An exciting opportunity for small law firms
  - Executor's commission 1 - Executor's commission and the professional executor
  - Executor's commission 2 - Horns of a dilemma
  - Executor's commission 3 - A fiduciary duty
  - Improving written submissions - A paper by Judge Alan Troy
  - Plain language – A paper by the Hon. Michael Kirby AC CMG
  - To accept or not accept instructions in urgent will matters
  - Wills and estates - Death in the house
- Further information
Overview

Until 2003, powers of attorney were made under the Conveyancing Act 1919. They were used to cover all decisions relating to both financial and health or lifestyle matters made on a principal’s behalf. Since 2003, financial decisions have been covered by the Powers of Attorney Act 2003 (NSW) and ...
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
Summary of the process

The usual steps in acting on the preparation of lifetime planning documents include:
This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
A. Getting the matter underway
- Recognition of interstate powers
  
  Powers of attorney A power of attorney is an instrument of common law. Accordingly, a power of attorney made in another state or territory is effective in New South Wales.
  This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
- File cover sheet - Wills and lifetime planning
- First steps
- Client details and verifying identity
- Retainer instructions - Wills and lifetime planning - For individuals
- Retainer instructions - Wills and lifetime planning - For couples
- Privacy collection notice
- Conflict of interest check
- Initial letter to client enclosing costs agreement
- Costs agreement - NSW
- Scope of work - Wills and lifetime planning
- Standard costs disclosure form for clients - Fees under $3000
- Time and costs estimates
- If required - Updating costs disclosure
  - Letter to client updating costs disclosure
  - Charge securing costs
  - Guarantee securing costs
  - Costs disclosure before settlement in litigation matters
    
    Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    
    Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
- General deeds, agreements, execution clauses, and statutory declarations
  - Deeds and Agreements
  - Deeds
    
    Deed for general use
    
    Deed of guarantee
    
    Deed of release
    
    Confidentiality deed
    
    General deed of indemnity
    
    Deed of assignment of agreement
    
    Deed of gift
    
    Library of standard clauses for deeds
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of deed - All parties
    
    Confidentiality for terms of deed - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Agreements
    
    Agreement for general use
    
    Heads of agreement
    
    Mediation agreement
    
    Non-disclosure agreement - Formal
    
    Non-disclosure agreement - Informal
    
    Library of standard clauses for agreements
    
    Amendment
    
    Confidentiality for defined information - All parties
    
    Confidentiality for defined information - One party
    
    Confidentiality for terms of agreement - All parties
    
    Confidentiality for terms of agreement - One party
    
    Costs
    
    Counterparts
    
    Dispute resolution
    
    Events beyond control
    
    Governing law and jurisdiction
    
    Interpretation
    
    No assignment
    
    Notices
    
    Severance
    
    Waiver
    
    Whole agreement
  - Execution clauses
    
    Library of execution clauses for agreements
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
    
    Individual - No witness
    
    Library of execution clauses for deeds
    
    Attorney
    
    Authorised officer
    
    Company
    
    Company - Sole director
    
    Individual
  - Statutory declarations
    
    Commonwealth statutory declaration
    
    Statutory declaration - blank - ACT
    
    Statutory declaration - blank - NSW
    
    Statutory declaration - blank - VIC
    
    Statutory declaration - blank - QLD
    
    Statutory declaration - blank - TAS
    
    Statutory declaration - blank - SA
    
    Statutory declaration - blank - WA
    
    Statutory declaration - blank - NT
    
    Standard annexure note for documents
B. Powers of attorney
- Powers of attorney
  
  A power of attorney is an instrument of common law. Accordingly, a power of attorney made in another state or territory is effective in New South Wales. However, because powers of attorney cease to be effective at common law if the principal loses capacity, creating an enduring power of attorney ...
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- The difference between a general and an enduring power of attorney
  
  A general power of attorney ends if the principal loses capacity. An enduring power of attorney continues after the principal loses capacity.
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- The form and scope of a power of attorney
  
  The power of attorney form Schedule 2 to the Powers of Attorney Regulation 2024 prescribes two forms for a power of attorney:
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- The principal and the attorney
  
  The principal The principal is the person who makes a power of attorney, giving someone else the authority to look after their money and assets. They are sometimes also called donors.
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- General power of attorney
  - General power of attorney - Client 1
  - General power of attorney - Client 2
  - General power of attorney - Clients appointing each other
    
    General power of attorney - Client 1 appointing client 2
    
    General power of attorney - Client 2 appointing client 1
  - Land Registry Services power of attorney
    
    General power of attorney
- Enduring power of attorney
  - Enduring power of attorney - Client 1
  - Enduring power of attorney - Client 2
  - Enduring power of attorney - Clients appointing each other
    
    Enduring power of attorney - Client 1 appointing client 2
    
    Enduring power of attorney - Client 2 appointing client 1
  - Land Registry Services power of attorney
    
    Enduring power of attorney
- Library of clauses for power of attorney
  - Company appoint attorney to conduct the business of the company
  - Access to will
  - Company appoint attorney to execute documents
  - Director appointing substitute during absence
  - Discharge of mortgage
  - Purchase of real property
  - Mortgage
  - Sale of real property
  - Application for probate or administration - Executor out of jurisdiction
- Witnessing the execution of powers of attorney
  
  The execution of a general power of attorney may be witnessed by anyone aged 18 years and older who is not a party to the document. The execution of an enduring power of attorney must be witnessed by a prescribed witness: s 19 of the Powers of Attorney Act 2003.
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- Remote witnessing attestation clause
- Witnessing via audio-visual link
  
  Part 2B of the Electronic Transactions Act 2000 provides for the witnessing of a power of attorney by audio-visual link. The witness must:
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- When a power of attorney comes into effect
  
  A power of attorney operates immediately after signing unless otherwise specified in the instrument. Under s 20, an enduring power of attorney does not confer authority until the attorney accepts the appointment by signing the instrument that creates the power. The attorney can sign when the ...
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- Irrevocable powers of attorney
  
  An irrevocable power of attorney must be expressed to be so and be given for valuable consideration: s 15. Under s 16, an irrevocable power cannot be revoked or otherwise terminated and remains effective despite:
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- If required - Registration of power of attorney and land transactions
  - Registration of a power of attorney and land transactions
    
    All powers of attorney can be registered in the General Register of Deeds at NSW Land Registry Services. However, registration is not necessary unless real property transactions are envisaged. Registering a power means that it will be:
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  - Letter to law stationer to register power of attorney
  - Deeds index particulars
- Corporations and directors
  
  Corporations A corporation has all the powers of a legal person, including granting a power of attorney recognised by the common law. A corporation may expressly or impliedly authorise an agent to enter into a contract on its behalf: ss 124 and 126 of the Corporations Act 2001.
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- Revocation of power of attorney
  - Revocation and renunciation of powers of attorney
    
    Revocation Unlike a will, a power of attorney does not revoke a previous appointment by the principal. If prior powers of attorney are not intended to continue, they must be revoked.
    This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
  - Letter to revoked attorney with revocation
  - Revocation of power of attorney
- Library of NCAT Guardianship division forms
  - Appointed guardian statement
  - Financial management application
  - Guardianship application
  - Request to be joined as a party
  - Request to withdraw a Guardianship Division application
  - Request to review a guardianship order
  - Review or revoke a financial management order
  - Other Forms
    
    NCAT Affidavit
    
    Notification of assistance required
    
    NSW Statutory declaration
    
    Request for fee waiver
    
    Request for language or disability support
    
    Request for sound recording
    
    Request for transcript
    
    Application for miscellaneous matters
    
    NCAT Complaint Form
    
    Request by non party to inspect public access documents
    
    Request for permission to attend NCAT hearing by telephone or video
  - Summons
    
    Application for leave to serve summons interstate
    
    Application for summons to be issued
    
    Application to uplift summons documents
    
    Summons
    
    Summons to give evidence for interstate service
  - Appeal & Set Aside
    
    Application to reinstate proceedings
    
    Application for stay of original decision pending appeal
    
    Application to set aside or vary tribunal decision
    
    Notice of appeal
    
    Notice of representation by a legal practitioner or agent
    
    Reply to appeal
- Review of powers of attorney
  
  The Supreme Court and the Guardianship Division of the NSW Civil and Administrative Tribunal have concurrent jurisdiction to review the making, revocation, or operation of powers of attorney on an application by interested persons: s 36 of the Powers of Attorney Act 2003. An interested person ...
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- Ademption
  
  Ademption occurs when real or personal property gifted under a will is no longer in the will-maker’s estate when they die. The law of ademption operates to ensure the specific bequest of an asset that no longer exists automatically fails. Any residue funds from converting the asset, such as the ...
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C. Enduring guardianship
- Enduring guardianship
  
  The appointment of an enduring guardian enables the appointee to make lifestyle, health and medical decisions for the appointor when the appointor cannot make those decisions for themselves.
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- The form of appointment of enduring guardianship
  
  Section 6C of the Guardianship Act 1987 sets out the method of appointment of an enduring guardian. The appointment must be in or to the effect of the form prescribed by Schedule 1 of the Guardianship Regulation 2016, signed by the appointor, signed and accepted by the guardian, with the ...
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- The appointor
  
  A person aged 18 years or older with capacity may appoint a guardian: s 6.
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- The guardian
  
  Eligibility for appointment Section 6B of the Act outlines the eligibility requirements for appointment as a guardian.
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- Functions of the guardian
  
  Section 6E of the Act authorises a guardian to carry out certain functions, including:
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- Appointment of enduring guardian - Client 1
- Appointment of enduring guardian - Client 2
- Appointment of enduring guardianship - Clients appointing each other
  - Appointment of enduring guardian - Client 1 appointing client 2
  - Appointment of enduring guardian - Client 2 appointing client 1
- Witnessing the execution and acceptance of an enduring guardianship
  
  The execution of an appointment of an enduring guardian must be witnessed by an eligible witness as defined by s 5. It cannot be witnessed by a guardian or a substitute guardian appointed by the instrument. The same person may witness the signatures of the appointor and the guardians. An ...
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- Remote witnessing attestation clause
- Witnessing via audio-visual link
  
  Part 2B of the Electronic Transactions Act 2000 provides for the witnessing of a power of attorney by audio-visual link. The witness must:
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- When an appointment comes into effect
  
  Appointments are limited to when the appointor requires a guardian, that is, when the appointor, because of a disability, is totally or partially incapable of managing their person: s 6A of the Guardianship Act 1987.
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- Revocation of enduring guardianship
  - Revocation and resignation of enduring guardianship
    
    Revocation The appointor may revoke the appointment of a guardian at any time the appointor has capacity to do so: s 6H of the Guardianship Act 1987.
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  - Letter to revoked guardian with revocation
  - Revocation of appointment of enduring guardian
  - Notice of resignation of appointment as enduring guardian
- When there is no guardian
  
  When a person loses capacity and has not appointed an enduring guardian, the Guardianship Act 1987 allows a responsible person to authorise medical and dental treatment: s 36 of the Act. Responsible persons are defined as:
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- Library of NCAT Guardianship division forms
  - Appointed guardian statement
  - Financial management application
  - Guardianship application
  - Request to be joined as a party
  - Request to withdraw a Guardianship Division application
  - Request to review a guardianship order
  - Review or revoke a financial management order
  - Other Forms
    
    NCAT Affidavit
    
    Notification of assistance required
    
    NSW Statutory declaration
    
    Request for fee waiver
    
    Request for language or disability support
    
    Request for sound recording
    
    Request for transcript
    
    Application for miscellaneous matters
    
    NCAT Complaint Form
    
    Request by non party to inspect public access documents
    
    Request for permission to attend NCAT hearing by telephone or video
  - Summons
    
    Application for leave to serve summons interstate
    
    Application for summons to be issued
    
    Application to uplift summons documents
    
    Summons
    
    Summons to give evidence for interstate service
  - Appeal & Set Aside
    
    Application to reinstate proceedings
    
    Application for stay of original decision pending appeal
    
    Application to set aside or vary tribunal decision
    
    Notice of appeal
    
    Notice of representation by a legal practitioner or agent
    
    Reply to appeal
D. Advance care planning
- Advance care planning
  
  An enduring guardianship enables a person to make lifestyle, health and medical decisions when the appointor cannot make those decisions themselves. An advance care directive allows a person to document their wishes and values regarding medical treatment decisions to be made on their behalf. It is ...
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- Advance care directive
- Witnessing via audio-visual link
  
  Part 2B of the Electronic Transactions Act 2000 provides for the witnessing of an enduring guardianship by audio-visual link. The witness must:
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- Remote witnessing attestation clause
- The legal framework for advance care directives
  
  Advance care directives have authority under case law. As detailed in the NSW Health document Advance Planning for Quality Care at End of Life: Action Plan 2013–2018, the legal framework in New South Wales supports end of life decisions and permits:
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- Government resources
  
  With no statutory framework for advance care directives, government resources can be helpful. The NSW Health website provides extensive information on advance care planning. Resources include:
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- General principles
  
  Advance care planning involves a client in:
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- Revocation of an advance care directive
  - Revocation of an advance care directive
    
    Just as there is no statutory form for advance care directives, there is no set form for the revocation of an advance care directive. Copies of an advance care directive that no longer stands should be destroyed. A Revocation of Advance Care Directive might be prepared to ensure the clientʼs ...
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  - Revocation of advance care directive
E. Finalising the matter
- Letter advising client that documents are ready for signing
- If required - Instructions for signing
  - Instructions for signing
- Finalising the matter
  
  As with wills, clients should be apprised of the need to revise their arrangements should their situation alter, particularly in the event of the death or incapacity of a nominated attorney or responsible person or the client's separation, divorce or (re)marriage. A copy of the document, if not the ...
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- Letter to client finalising the matter
- Letter to attorney re general power - Commencement as per commencement clause
- Letter to attorney re enduring power - Commencement as per commencement clause
- Letter to appointed guardian advising of their role
- Example invoice incorporating notification of client's rights - NSW
- Invoice recital - Power of attorney NSW
- Invoice recital - Enduring guardianship NSW
- Closing the file
- File closing checklist
Comments and suggestions for By Lawyers

101 Succession Answers for New South Wales

Including:
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Estates
- Accounts
  
  Duty to keep accounts The executor or administrator has a duty to keep proper accounts and records of the estate’s administration, and to make them available to the beneficiaries.
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- Ademption of gifts
  
  A testamentary gift of an asset is adeemed, that is, revoked or withdrawn, if the asset no longer exists on the testator’s death. If a testator sells a bequeathed asset after making their will, the question arises whether the proceeds of the sale should go to the beneficiary to satisfy the bequest.
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- Administration
  
  Under s 55 of the Succession Act 2006, administration of a deceased's estate includes a grant of probate or letters of administration made in New South Wales or resealed under New South Wales legislation. Under s 3 of the Probate and Administration Act 1898, administration includes:
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- Administration bond or guarantee
  
  Under s 64 of the Probate and Administration Act 1898, the court can require an administrator to provide a surety up to the value of the estate against any loss resulting from a breach of their duties. This surety, or financial guarantee, is known as an administration bond. The NSW Trustee and ...
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- Administrator
  
  The definition of an administrator in both s 3 of the Probate and Administration Act 1898 and s 3 of the Succession Act 2006 is identical. It includes the NSW Trustee and Guardian and anyone who is granted administration. The term administratrix, previously used to refer to a female ...
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- Application for a grant of probate or letters of administration
  
  Application requirement Whether a deceased leaves a valid will, a will that does not appoint an executor or cover the entire estate, or no will at all, applying for a grant of probate or letters of administration is not always a legal requirement. It depends on the assets in the estate.
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- Application to revoke a grant of probate or letters of administration
  
  Under Division 7 of Part 78 of the Supreme Court Rules 1970, an application to revoke a grant of probate can be made to the Supreme Court. However, the Probate and Administration Act 1898 does not expressly provide the court with the power to revoke a grant of probate. In O'Brien v ...
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- Assets and liabilities of the estate
  
  Beneficiary in possession of estate property It is the duty of the executor or administrator to get in the estate assets, including any property held by beneficiaries.
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- Beneficiaries
  
  Beneficiary liable for a debt to the estate If a beneficiary is personally liable for a debt owed to the estate, then the rule in Cherry v Boultbee (1839) 4 Myl & Cr 442; 41 ER 771 applies. The beneficiary is not entitled to participate in the distribution of the estate without paying their ...
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- Bequests
  
  A bequest is a gift by will. A specific bequest is a gift of specified property, for example, a watch.
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- Burials, cremations, and funerals
  
  Deceased's wishes Testators often include instructions in their will about funeral arrangements or organ donation. However, these instructions are not legally binding on the executor.
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- Capacity
  
  A testator must have testamentary capacity when the will is executed for it to be valid. There is a presumption of capacity. If it is alleged that the testator lacked capacity, the onus is on the person making the allegation to support it, usually with medical evidence.
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- Caveats
  
  Caveat against an application for a grant Under s 144 of the Probate and Administration Act 1898, a person may lodge a caveat in the Supreme Court against an application for a grant of probate or letters of administration, or for the reseal of either grant.
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- Chain of executorial representation
  
  Under s 44A of the Probate and Administration Act 1898, when a sole executor or the last surviving executor dies, the executor of either one of them is the testator's executor by representation. This is the chain of executorial representation. Under s 44A(2), while this chain of ...
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- Challenges to a will
  
  An interested person can oppose an application for a grant of probate or letters of administration by challenging the validity of the will in question. To challenge a will, a party must demonstrate that they have rights likely to be affected by the disputed grant of probate or administration: ...
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- Codicils
  
  A codicil is a document that amends an existing will without replacing it. The will and codicil need to be read together to determine who the executors are and the terms of the will.
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- Co-executors – authority to act
  
  All the executors are required to participate when the estate:
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- Commission to legal personal representatives
  
  The right of a legal personal representative to receive payment of commission arises through:
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- Construction of the will
  
  When a will is unclear, the court may be required to construe, or interpret, a testator’s intended meaning to give effect to the will. Part 2.3 of the Succession Act 2006 governs the construction of wills, including those made under foreign law and international wills.
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- Court powers over wills and estates
  
  The Supreme Court has jurisdiction over wills and estates under legislation and as part of its inherent jurisdiction. Under Division 4 of Part 2 of the Probate and Administration Act 1898, the Local Court has limited power to act as a district agent for the registrar of the Supreme Court ...
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- Death
  
  See also Executor.
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- Disclosure of assets
  
  See Assets and liabilities of the estate.
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- Distribution
  
  Once a grant is issued, a legal personal representative can distribute the estate according to the will or under the intestacy provisions, subject to any claims brought against the estate within the prescribed time, or any time extended by the court. However, a legal personal representative risks ...
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- Duties of a deceased’s legal personal representative
- Executor
  
  An executor is a person named in a will who is responsible for carrying out the testator's instructions regarding the distribution of their assets after their death, and ensuring those assets are protected and preserved until final distribution. A company cannot be an executor, except the NSW ...
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- Grants in estate matters
- Hotchpot clause
  
  A hotchpot or adjustment clause is used to account for inter vivos gifts or loans, usually to the deceased's children, in a will. When those advancements are combined with the gifts to those children under the will, all the children receive an equal benefit. In Re Tennant Mortlock v Hawker [1942] ...
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- Informal wills
  
  The court can grant probate on an informal will under s 8 of the Succession Act 2006. Under s 8, the court can dispense with the formal requirements for making, altering, or revoking a will if satisfied that:
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- Injunction
  
  A dissatisfied beneficiary or claimant on an estate may seek an injunction to restrain the deceased's legal personal representative from dealing with estate property and, particularly, from selling real property. As with any application for injunctive relief, the applicant must undertake to pay ...
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- Insolvency
  
  For insolvent estates, the deceased's real and personal estate is administered under Part 1 of the Third Schedule of the Probate and Administration Act 1898, subject to any relevant provisions of the Bankruptcy Act 1966 (Cth): s 46C(1) of the Probate and Administration Act 1898.
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- Intermeddling
  
  A legal personal representative has no formal authority to deal with the deceased's property or to take any step in administering the estate until they obtain a grant. An executor or administrator intermeddles when they deal with estate property before a formal grant is made.
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- Intestacy
  
  Under s 102 of the Succession Act 2006, a person who dies intestate is someone who:
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- Joint mortgage responsibility
  
  On the death of a joint tenant, the responsibility for a registered mortgage passes to the surviving joint tenant. However, the estate of the deceased joint tenant may remain liable under any personal covenants of a mortgage.
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- Larke v Nugus letters
  
  In Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at paragraph 82, the Supreme Court discussed the English Court of Appeal decision in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033, stating:
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- Legislation
  
  Applicable legislation includes:
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- Letters of administration
  
  See Application for a grant of probate or letters of administration.
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- Life estate
  
  A life estate, or life tenancy, is a proprietary interest in real property that can be registered on title. A trust that creates a life tenancy involves 4 parties:
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- Litigation
  
  The most typical claims against an estate are family provision claims and challenges to a will. A challenge to a will involves an interested person opposing an application for a grant of probate or letters of administration by seeking to impugn the will. See Re Estates Brooker-Pain and Soulos ...
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- Missing will
  
  A grant for probate or letters of administration can be obtained on a copy of a missing will: In the Will of Valerie Eve Robson (deceased) [2020] QSC 52, concerning probate, and Williamson v Pay [2020] QSC 66, concerning letters of administration. Regarding letters of administration, the Supreme ...
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- Multiple original copies of a will
  
  If a testator executed more than one copy of the same will, an application for probate or letters of administration with the will annexed must include all copies of that will. The executor's or administrator's affidavit will need to include how many copies were executed, and whether they have all ...
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- Multiple wills
  
  Theoretically, it is possible to have more than one will. This may be the case for a testator with assets in 2 or more different jurisdictions, typically Australia and another country. Only the local will in each jurisdiction needs to be proved. In New South Wales, however, having multiple ...
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- Passing over of an executor
- Personal liability of legal personal representatives
  
  Once an executor or administrator has obtained a grant, they can distribute in accordance with the will or under the rules of intestacy in Chapter 4 of the Succession Act 2006. Distribution is subject to any claims brought against the estate within the prescribed time or any extension of time ...
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- Probate
  
  See Application for a grant of probate or letters of administration.
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- Rectification of a will
  
  Under s 27 of the Succession Act 2006, the court can make an order to rectify a will if it is satisfied the will does not carry out the testator's intentions due to a clerical error or because the will does not give effect to the testator's instructions. An application to rectify a will must ...
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- Renunciation of executor
- Renvoi
  
  As defined by the court in Kong v Yan [2021] SASC 82, the doctrine of renvoi:
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- Replacement or removal of an executor
  
  If a named executor does not prove the will, renounce probate within 3 months of the testator's death, or cannot be found, the court may make a grant or order on an application made by:
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- Reseal
  
  See Application for a grant of probate or letters of administration.
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- Resignation of an executor
  
  An executor can resign from or renounce the office before applying for a grant, but cannot resign once probate has been granted. However, an executor can apply to the court to have the grant revoked: s 66.
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- Revocation of a grant
  
  See Application to revoke a grant of probate or letters of administration.
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- Small estates
  
  A small estate is one with assets not exceeding $15,000. Often, a grant is not necessary for a small estate. Most banks and other financial institutions will release assets without requiring a grant but usually seek an indemnity from the recipient.
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- Superannuation
  
  Superannuation does not form part of an estate and generally cannot be dealt with in a will. A member of a superannuation fund must make a binding nomination or binding nominations to direct the fund's trustee to deal with the proceeds of the member's superannuation death benefit on their death. ...
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- Survivorship
  
  When a joint tenant dies, their interest in the land automatically passes to the surviving joint tenant or tenants. This is known as the doctrine of survivorship. On the death of a person registered as a joint proprietor with any other person, the surviving joint proprietor will be registered as ...
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- Terminating a lease on death of a tenant
  
  A deceased tenant's estate is responsible for cleaning up the property and remains liable for rent until the residential rental agreement ends. Termination occurs when either the landlord or the tenant's legal personal representative gives notice to the other party: s 108 of the Residential ...
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- Trustees
  
  Once an estate's administration is completed, the executor becomes a trustee. In that capacity, the person may retire under s 8 of the Trustee Act 1925 or delegate if absent from the jurisdiction. It may be appropriate to advise administrators and trustees contemplating certain arrangements ...
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- Who can inspect a deceased’s will
Family provision claims
- About family provision generally
  
  The starting point for making wills is the legal principle of freedom of testamentary intent, meaning that a person should be able to leave their estate to whomever they choose, and to exclude anyone as a beneficiary. However, the previous Testator's Family Maintenance and Guardianship of Infants ...
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- Adequate provision
  
  Under s 59 of the Succession Act 2006, the court will make a family provision order if satisfied that:
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- Adult children including stepchildren
  
  Claims by adult children under Chapter 3 of the Succession Act 2006 are the most common type of claim against an estate. In Megerditchian v Khatchadourian [2019] NSWSC 1870 at paragraph 177, Parker J said:
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- Affidavits
  
  Evidence in family provision cases is provided by affidavit. See Supreme Court Practice Note - Probate and Family Provision List, which includes a pro forma affidavit with headings that correspond with the listed matters in s 60(2) of the Succession Act 2006. In Megerditchian v Khatchadourian ...
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- Application does not require a grant
  
  Under s 58(1) of the Succession Act 2006, an application for a family provision order can be made irrespective of whether probate or letters of administration has been granted. However, the court may grant administration under s 91 to allow an application for a family provision order to ...
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- Bare paternity
  
  Bare paternity describes a child's biological link to an absent father. In Harris v Carter [2020] NSWSC 196, the defendant argued that the relationship between the deceased and the plaintiff, a 13-year-old who had never had contact with his deceased father, was bare paternity. At ...
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- Bringing a claim
- Close personal relationship
  
  See also Dependency and Eligible persons. A close personal relationship is different to a de facto relationship.
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- Costs
  
  In family provision cases, costs do not always follow the cause. Sometimes, the estate pays an unsuccessful claimant's costs. However, a plaintiff may be required to pay the estate's costs if their claim lacks merit, they have rejected a reasonable offer of settlement, or they have behaved ...
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- Crisp order
  
  A Crisp order directs that the value of a testator's home be transferred to another property, for example, into a retirement unit for a surviving spouse, with the remaining estate passing to the final beneficiaries as specified in the testator's will once the spouse or other recipient dies. ...
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- De facto partners
  
  A de facto relationship is different to a close personal relationship. The categories of eligible persons in s 57 of the Succession Act 2006 include de facto partners: s 57(1)(b).
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- Dependency
  
  See also Close personal relationship and Eligible persons. Under s 57(1)(e), a claimant for family provision must show not only that they are a grandchild of the deceased or were a member of the deceased's household at any time, but also that they were wholly or partly dependent on the ...
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- Disclosure
  
  In Megerditchian v Khatchadourian [2019] NSWSC 1870 at paragraph 145, the court noted:
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- Eligible persons
  
  To make a family provision order regarding a deceased's estate, the court must be satisfied the applicant is an eligible person under s 57(1) of the Succession Act 2006:
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- Estrangement
  
  Towson v Francis [2017] NSWSC 1034 addressed estrangement between an adult child and a deceased parent. At paragraphs 79–80 of this case, Hallen J referred to his own previous decision in Underwood v Gaudron [2014] NSWSC 1055 as follows:
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- Extension of time
  
  Under s 58(2) of the Succession Act 2006, a family provision application must be lodged within 12 months of the deceased's date of death, unless the court orders otherwise on the applicant providing sufficient cause, or all parties consent to an application made out of time. An ...
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- Factors warranting a claim
  
  For eligible persons under s 57(1)(e) and (f) of the Succession Act 2006, the court must find factors warranting an application before it can make a family provision order. The 2 categories of eligible persons include:
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- Family law orders – impact on claims
  
  Dark v Dark [2016] NSWSC 1223 exemplified the interplay between family provision claims and previous family law property orders. This case involved a claim by a surviving spouse who was separated from the deceased at the time of his death. While separated, they signed a financial agreement under ...
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- Grandchildren
  
  Regarding claims by a grandchild, Hallen J in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at paragraph 113 set out the general principles he considered relevant. Four of those principles include:
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- Interim provision
  
  Under s 62 of the Succession Act 2006, an eligible person under Chapter 3 can apply for an interim provision from the estate while awaiting the final hearing. However, interim provision applications are rarely successful. Where an interim provision is granted, the applicant is usually ...
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- Intestacy
  
  Under s 102 of the Succession Act 2006, a person who dies intestate is someone who:
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- Legislation
  
  Applicable legislation includes:
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- Matters to be considered by the court
  
  For an application for a family provision order, the court is bound by s 59 of the Succession Act 2006, which outlines when a family provision can be made, and s 60, which sets out the matters for the court to consider. Both sections are covered under Adequate provision. In Wayne Laurence ...
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- Notional estate
  
  A notional estate claim is an application to the court to recover assets that were distributed in the 3 years preceding the testator's death. The aim of this type of claim is to prevent a person from trying to avoid a family provision order by giving away their assets before they die.
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- Orders
  
  The court can make family provision orders out of an estate only if it is satisfied that the claimant is an eligible person for whom adequate provision was not made in the will or on intestacy, and there are factors justifying an order.
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- Release of rights
  
  Section 95 allows a person to release their rights to apply for a family provision order, subject to court approval. An application for approval of a release of these rights can be made before or after the deceased's death.
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- Settlement
- Surviving spouses
  
  When the estate is sufficient, appropriate provision for a surviving spouse's maintenance and advancement generally includes unencumbered accommodation, usually the residence they shared with the deceased or its equivalent, and sufficient funds to ensure they are cared for and can maintain the ...
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- Testamentary freedom
  
  The legal principle of testamentary freedom is a person's right to distribute their estate as they choose on their death, including the right to exclude any person as a beneficiary from their will. In Banks v Goodfellow (1870) LR 5 QB 549 at 564, Cockburn CJ said:
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- Variation and revocation of order
  
  The court may vary or revoke a family provision order to allow provision for another eligible person out of property affected by the order, but only if that person shows sufficient cause for not having applied for a family provision order before the original order was made: s 70. If a grant of ...
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Guardianship and financial management
- Appointments
  
  Under Part 3 of the Guardianship Act 1987, the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) or the Supreme Court can appoint a person to make decisions on behalf of someone who lacks or has lost capacity to do so. A person appointed under a Part 3 ...
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- Enduring guardians
  
  See also Persons responsible for consent to treatment.
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- Execution of guardianship instruments
  
  In addition to affixing a seal, the definition of sign in Schedule 4 of the Interpretation Act 1987 includes making a mark.
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- Financial management
  
  Under Part 3A of the Guardianship Act 1987, NCAT can make financial management orders for a person who cannot manage their own financial affairs. This inability is separate and distinct from the person's ability to appoint an enduring guardian for themselves, or from the tribunal's authority ...
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- Functions of a guardian
  
  An enduring guardian's functions are set out in s 6E(1) and in the Appointment of Enduring Guardian form. These functions include:
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- Interstate and international guardians
  
  A person appointed under a corresponding law as another person's guardian or estate manager can apply to NCAT for recognition of their status: s 48B(1). On recognition, the person can act as guardian or manager, but only if the role they perform would be authorised by the corresponding law and ...
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- Jurisdiction
  
  Guardianship matters fall under the jurisdiction of NCAT's Guardianship Division or the Supreme Court of New South Wales. See also Review of appointment.
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- Legislation
  
  Applicable legislation includes:
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- McKenzie friends
  
  McKenzie friends are named after McKenzie v McKenzie (1970) 3 WLR 472, an English family law case. A McKenzie friend assists an unrepresented, or self-represented, litigant in court.
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- Persons responsible for consent to medical and dental treatment
  
  Part 5 of the Guardianship Act 1987 aims to ensure no-one is denied essential medical and dental treatment due to a lack of capacity to provide consent. For this purpose, the legislation sets out who is responsible for a person lacking capacity to give consent to medical and dental treatment ...
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- Review of appointment
  
  An appointment of an enduring guardian can be reviewed by NCAT's Guardianship Division or the Supreme Court under ss 6J and 6L respectively. Under s 6J, NCAT can suspend an appointment of enduring guardian that is under review.
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- Revocation and resignation
  
  Revoking an appointment of enduring guardian
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- Suspension of appointment
  
  Any guardianship order made by NCAT or the Supreme Court under Part 3 temporarily suspends any appointment of an enduring guardian for the duration of that order. Under s 6J, NCAT can suspend an appointment of enduring guardianship that is under review.
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- Tribunal
  
  The tribunal referred to in the Guardianship Act 1987 is the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT). Together with the Supreme Court, NCAT has jurisdiction over guardianship matters under the Act and can review appointments of enduring guardians.
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- Witnessing an enduring guardian appointment
  
  Eligible witness An appointment of an enduring guardian can only be witnessed by an eligible witness as defined in s 5 of the Guardianship Act 1987.
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Powers of attorney
- About powers of attorney generally
  
  Granting someone the power to act as an attorney means that person can step into the shoes of the grantor, known as the donor or principal, and act on their behalf. This means the attorney can do anything on the principal's behalf that the principal can do legally, as long as the attorney acts in ...
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- Appointing an attorney
  
  Any person aged 18 years or older with the mental capacity to make relevant decisions can be appointed as an attorney. A person can nominate more than one attorney. The power of attorney document can allow those attorneys to act jointly or severally.
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- Capacity
  
  A testator must have testamentary capacity when the will is executed for it to be valid. There is a presumption of capacity. If it is alleged that the testator lacked capacity, the onus is on the person making the allegation to support it, usually with medical evidence.
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- Corporations
  
  The Powers of Attorney Act 2003 applies only to a natural person, not to a corporation. Under the Corporations Act 2001, however, a company can be appointed as an attorney or appoint an attorney.
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- Death
  
  See also Executor.
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- Delegation of power of attorney
  
  A specified attorney cannot appoint a substitute attorney, sub-attorney, or delegate unless the power of attorney document expressly permits it: s 45 of the Powers of Attorney Act 2003. A substitute attorney appointed by the principal can act during a vacancy in the office of the specified ...
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- Directions
  
  No prescribed wording applies for the directions that may be given in a power of attorney document, nor any restrictions on those directions. However, a power of attorney must expressly state the authority for the attorney to give gifts, or confer benefits on the attorney or third parties: ...
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- Directors
  
  A company director with a general power of attorney for another director under the Powers of Attorney Act 2003, cannot exercise the principal's directorial duties. The principal cannot delegate their power. However, a company's constitution may specifically empower:
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- Duties and powers of an attorney
  
  An attorney's duties and powers are set out in Parts 2 and 6 of the Powers of Attorney Act 2003. An attorney's duties are not affected under the common law or equity, unless the Act provides otherwise: s 7. Under s 9(1), a general power of attorney confers on the attorney:
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- Execution of power of attorney
  
  Execution of a power of attorney can be witnessed by anyone aged 18 years and over who is not a party to the document. An enduring power of attorney must be witnessed by a prescribed witness, which includes a registrar of a local court or an Australian legal practitioner: s 19(2). A ...
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- Executor’s attorney
- Incommunicate
  
  A person is considered incommunicate if they cannot understand communications or express their intentions about their property or affairs, for example, because they have a physical or mental disability, or if they cannot be located or contacted: s 4(1) of the Powers of Attorney Act 2003. ...
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- Insolvency
  
  For insolvent estates, the deceased's real and personal estate is administered under Part 1 of the Third Schedule of the Probate and Administration Act 1898, subject to any relevant provisions of the Bankruptcy Act 1966 (Cth): s 46C(1) of the Probate and Administration Act 1898.
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- Interstate enduring powers of attorney
  
  A valid enduring power of attorney executed in another state or territory is recognised in New South Wales, but only confers powers on an attorney in New South Wales that can be granted under an enduring power of attorney made in New South Wales: s 25 of the Powers of Attorney Act 2003. An ...
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- Irrevocable power of attorney
  
  Under s 15 of the Powers of Attorney Act 2003, a power of attorney can be expressed to be irrevocable as long as it is given for valuable consideration. Irrevocable powers of attorney are typically found in loan, franchise, or other commercial contract documents. These documents often require ...
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- Joint attorneys
  
  Disputes Joint attorneys must collaborate and make joint decisions collectively. Provision can be made in the document for one of the attorneys to have a casting vote or a third party to be consulted in the event of a joint decision deadlock.
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- Legislation
  
  Applicable legislation includes:
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- Limitations
  
  Limitations or directions do not need to be included in a power of attorney. There are no specific restrictions or prescribed wording for limitations or directions included in a power of attorney document.
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- Liquidator
  
  A liquidator can appoint an attorney to act on their behalf in managing the company. See, for example, Australian Guarantee Corporation Ltd v Registrar of Titles (1992) 7 ACSR 577.
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- Overseas powers of attorney
  
  An ordinary power of attorney made overseas can be relied on in New South Wales if it:
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- Prescribed power of attorney
- Registration of power of attorney
- Review of power of attorney
  
  A power of attorney can be reviewed by the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) or by the Supreme Court: s 26 of the Power of Attorney Act 2003. The Act deals with these reviews in Division 4 of Part 5. The principal, an attorney under the ...
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- Revocation of power of attorney
  
  A power of attorney:
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- Suspension
  
  A power of attorney is not terminated if the principal's estate is later managed under the NSW Trustee and Guardian Act 2009: s 50(1) of the Powers of Attorney Act 2003. The power is simply suspended while it is a managed estate: s 50(3). However, suspension is subject to the express ...
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- Vacancy in the office of attorney
  
  Under s 5 of the Powers of Attorney Act 2003, a vacancy in the office of an attorney occurs on revocation or renunciation of the power, or the death, bankruptcy, or incapacitation of the attorney. A vacancy results in termination of the power of attorney, unless more than one attorney remains ...
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- Witnessing execution of power of attorney
  
  Who can be a witness For a general power of attorney, the Powers of Attorney Act 2003 does not specify who can witness the principal's execution of the document. Accordingly, any person can be a witness. However, to provide evidence of the signing and to avoid conflicts of interest, the witness ...
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Wills
- About wills generally
- Administration of deceased’s estate
- Administrator
  
  The definition of an administrator in both s 3 of the Probate and Administration Act 1898 and s 3 of the Succession Act 2006 is identical. It includes the NSW Trustee and Guardian and anyone who is granted administration. The term administratrix, previously used to refer to a female ...
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- Alteration
  
  Alterations to a will are permitted by s 14 of the Succession Act 2006. By their nature, alterations are presumed to have been made after the will's execution. Under s 14(1), alterations are only effective if made by a court order under ss 16 or 18, or are executed in the same way as ...
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- Beneficiaries
  
  Beneficiary liable for a debt to the estate If a beneficiary is personally liable for a debt owed to the estate, then the rule in Cherry v Boultbee (1839) 4 Myl & Cr 442; 41 ER 771 applies. The beneficiary is not entitled to participate in the distribution of the estate without paying their ...
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- Burials, cremations, and funerals
  
  Deceased's wishes Testators often include instructions in their will about funeral arrangements or organ donation. However, these instructions are not legally binding on the executor.
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- Codicil
  
  A codicil is a brief supplementary document used to make minor changes or adjustments to an existing will. For a codicil to be legally binding, it must be signed and witnessed in the same manner as a will. It should be kept with the original will.
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- Construction of a will
  
  When a will is unclear, a court may be required to construct the testator's intended meaning to give effect to the will. Part 2.3 of the Succession Act 2006 provides general rules about construction of wills, including particular provisions in wills, which all apply subject to any contrary ...
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- Contracts to make wills
  
  See Mutual wills.
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- Court-authorised wills
  
  Any person may apply to the Supreme Court for an order to authorise the making, alteration, or revocation of a will on behalf of a person lacking testamentary capacity, including a minor: s 18 of the Succession Act 2006. Wills authorised by the court are known as statutory wills.
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- Dispensing with formal requirements
- Disposition of estate property
  
  Disposition of land A general disposition of land in a will includes leasehold land, regardless of whether the testator also owns freehold land, unless the will states otherwise: s 36. A lease agreement may override this provision.
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- Divorce or annulment of marriage
  
  Under s 13(1) and (2), divorce or annulment of a marriage by a testator who made a will during the marriage revokes:
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- Execution of a will
  
  Section 6 of the Succession Act 2006 provides for how a will is to be executed, namely:
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- Executor
  
  An executor is a person named in a will who is responsible for carrying out the testator's instructions regarding the distribution of their assets after their death, and ensuring those assets are protected and preserved until final distribution. A company cannot be an executor, except the NSW ...
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- Extrinsic evidence to construe a will
  
  When the language in a will is meaningless, or ambiguous either on its face or in the context of the surrounding circumstances, the court can admit extrinsic evidence, including evidence of the executor's intentions, in any proceedings to interpret the will: s 32(1) of the Succession Act 2006. ...
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- Foreign wills
  
  See International wills.
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- Formal requirements of a valid will
  
  See Execution of a will.
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- Homemade wills
  
  The Supreme Court considered a homemade will in Jones v Robinson & Ors [2019] NSWSC 932, particularly the question of its proper interpretation where ambiguity existed in the will. Sacker J noted at paragraph 47:
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- Incorporation by reference
  
  A document can be incorporated into a will by simply being referenced. However, as stated by McDonald J in Fast and Ors v Rockman and Ors [2015] VSC 337 at paragraph 9:
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- Informal wills
  
  The court can grant probate on an informal will under s 8 of the Succession Act 2006. Under s 8, the court can dispense with the formal requirements for making, altering, or revoking a will if satisfied that:
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- International wills
  
  An international will is a will recognised as valid in all countries that are signatories to the Convention Providing a Uniform Law on the Form of an International Will signed in Washington on 26 October 1973. The Convention harmonises and simplifies the requirements for proof of ...
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- Legislation
  
  Applicable legislation includes:
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- Living wills
  
  The term living will is not legally recognised in Australia. The purpose of a living will, however, is to clearly outline an individual's desired medical treatment should they become incapable of giving informed consent.
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- Making a will
- Marriage and domestic relationships
  
  A will is revoked by marriage: s 12(1) of the Succession Act 2006. Despite this, marriage does not revoke dispositions to or appointments as executor, trustee, advisory trustee, or guardian of the spouse to whom the testator was married at the time of their death: s 12(2).
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- Minimum age of will maker
  
  Under s 5 of the Succession Act 2006, a will made by anyone aged under 18, is not valid. However, the following exceptions apply:
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- Multiple original copies of a will
- Multiple wills
  
  Theoretically, it is possible to have more than one will. This may be the case for a testator with assets in 2 or more different jurisdictions, typically Australia and another country. Only the local will in each jurisdiction needs to be proved. In New South Wales, however, having multiple ...
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- Mutual wills
  
  Mutual wills originated in common law and can be traced back to the 18th century. Today, mutual wills are executed under contractual agreements and enforced by courts under equitable principles or contract law. Mutual wills involve 2 parties, usually spouses, entering into an agreement to ...
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- Promises to make a will or a bequest
- Property that can be dealt with in a will
  
  Under s 4(1) of the Succession Act 2006, a testator can dispose of by will any property they are entitled to, that is, any property they personally own, at the time of their death. Section 4(3) extends this definition to estate property that a testator's legal personal representative ...
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- Rectification of a will
  
  Under s 27of the Succession Act 2006, the court can rectify a will to reflect a testator's intentions if satisfied the will fails to do so due to a clerical error or fails to give effect to the testator's instructions. An application to rectify a will must be lodged within 12 months of ...
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- Revival of a revoked will
  
  A revoked will is revived either by re-executing the will, or by executing a will that shows an intention to revive all or part of the revoked will: s 15(1). When part of a will is revoked and the balance is revoked later, the revival only restores the most recently revoked part of the will: ...
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- Revocation
  
  Sections 11–13 deal with revocation of a will. A will is revoked by:
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- Solicitors
  
  Appointment of a particular firm A clause in a will requiring an executor to appoint a particular law firm to act on the estate's behalf is not binding: Foster v Elsley (1881-2) 19 Ch D 518.
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- Statutory wills
  
  See Court-authorised wills.
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- Superannuation
  
  Superannuation does not form part of an estate and generally cannot be dealt with in a will. A member of a superannuation fund must make a binding nomination or binding nominations to direct the fund's trustee to deal with the proceeds of the member's superannuation death benefit on their death. ...
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- Survivorship
  
  When a joint tenant dies, their interest in the land automatically passes to the surviving joint tenant or tenants. This is known as the doctrine of survivorship. On the death of a person registered as a joint proprietor with any other person, the surviving joint proprietor will be registered as ...
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- Suspicious circumstances
  
  When a will is executed under apparently suspicious circumstances, the person propounding the will must prove it was not executed in suspicious circumstances otherwise probate will not be granted. In Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197, the Court of Appeal considered suspicious ...
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- Testamentary capacity
  
  Assessing capacity A lawyer taking instructions for a will must be satisfied that the will maker has the capacity to make a will.
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- Testamentary discretionary trusts
  
  A testamentary discretionary trust is a discretionary trust created by a will that comes into existence on the death of the testator. A testator setting up this type of trust in their will:
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- Witnesses
  
  Formal requirements Under s 6 of the Succession Act 2006, a will must be signed by at least 2 witnesses, both of whom must:
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Wills and Lifetime Planning

This publication guides practitioners in New South Wales through taking instructions, advising on, and preparing wills, powers of attorney, appointment of guardians, and advance care planning.

Overview

Precedents in this publication include:

3 Matter Plans Included

Our Authors