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Wills and Lifetime Planning

TAS

This publication guides practitioners in Tasmania through taking instructions, advising on, and preparing wills, powers of attorney, enduring guardianship and advance care planning.

2 Matter Plans

Overview

The Wills commentary addresses key considerations, including tax implications, the use of testamentary trusts, validity requirements, and dealing with assets in multiple jurisdictions.

The Powers of Attorney, Enduring Guardianship and Advance Care Planning commentary covers both general, particular and enduring powers of attorney, appointment of enduring guardians and advance care directives.

The Reference materials folder includes a comparative table for recognition of interstate powers and guidance on electronic signing and witnessing, and the comprehensive Getting the matter underway folder includes compliance and client care documents. Using the extensive Retainer Instructions when gathering information ensures nothing is missed.

Precedents in this publication include:

  • Library of will precedents for a range of situations and clients;
  • Library of clauses for wills, including:
    • discretionary and special disability trusts;
    • bequests to charity, right of occupation or life estate;
    • quarantining assets, excluding beneficiaries, and burial wishes;
  • Library of attestation clauses;
  • International will certificate;
  • General and enduring powers of attorney;
  • Library of clauses for powers of attorney;
  • Appointment of enduring guardian.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Wills (TAS)
  • Folder icon Reference materials
    • Item icon 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 ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Costs Answers
    • Folder icon Papers and articles - Wills and estates
      • Item icon Estate planning - An exciting opportunity for small law firms
      • Item icon Executor's commission 1 - Executor's commission and the professional executor
      • Item icon Executor's commission 2 - Horns of a dilemma
      • Item icon Executor's commission 3 - A fiduciary duty
      • Item icon Improving written submissions - A paper by Judge Alan Troy
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
      • Item icon To accept or not accept instructions in urgent will matters
      • Item icon Wills and estates - Death in the house
    • Item icon Further information
  • Item icon Overview
    The law relating to wills in Tasmania is covered by the Wills Act 2008. A will is a document containing a person’s instructions on distributing their property and assets after death. Failure to make a will results in the statutory distribution of the deceased’s assets.

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  • Item icon Summary of the process
    The usual steps in a will matter are:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Wills and lifetime planning
    • Item icon To do list - Wills
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Wills and lifetime planning - For individuals
    • Item icon Retainer instructions - Wills and lifetime planning - For couples
    • Item icon Conflict of interest check
    • Item icon Taking instructions for wills
      Obtaining written instructions is vital as, in some cases, they may constitute an informal will. See Informal wills. The Retainer Instructions on the matter plan will assist a lawyer drafting a will.

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    • Item icon Informal wills
      An informal will might be required if circumstances suggest the client may lose testamentary capacity or die before they can execute a formal will. Section 10 of the Wills Act 2008 provides that if a will fails to meet the formal requirements, the court may admit it to probate if satisfied the ...

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    • Item icon Testamentary capacity
      Although not often an issue, the first question for a lawyer to consider when preparing a will is whether the testator has testamentary capacity. The leading authority concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549, 565. In that case, Cockburn CJ held:

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    • Item icon Testamentary capacity checklist
    • Item icon Initial letter to client enclosing costs agreement
    • Item icon Letter to individual client to confirm instructions
    • Item icon Letter to spouse clients to confirm instructions
    • Item icon 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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    • Item icon Costs agreement - TAS
    • Item icon Scope of work - Wills and lifetime planning
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Folder icon If required - Advice to client on testamentary discretionary trusts
      • Item icon Letter to client advising on testamentary trusts
      • Item icon Enclosure - Benefits of testamentary discretionary trusts
    • Folder icon If required - Authority for deeds
      • Item icon Letter to solicitor with authority for deeds
      • Item icon Authority to solicitor to forward deeds
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. Will preparations
    • Item icon Formal requirements
      The formal requirements for a valid will, as set out in s 8 of the Wills Act 2008, are that:

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    • Item icon Revocation and revival
      Revocation Section 15 of the Wills Act 2008 deals with when and how the testator can revoke a will.

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    • Item icon 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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    • Item icon 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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    • Item icon Guardianship of minor children
      The decision whether to include a provision appointing guardians in a will can be difficult. Most often, the decision is not to appoint guardians as the children will go to the family best able to care for them at the time of the testator's death. Who this will be is unknown when making the will. ...

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    • Item icon Disposition of property
      The disposition of property in a will can be a complex area.

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    • Item icon Superannuation death benefits and nomination
      Many clients are surprised to learn that their superannuation does not form part of their estate and their will cannot deal with it. To ensure that superannuation funds are paid to the correct person on the death of a superannuation fund member, the member must make a binding death benefit ...

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    • Item icon Binding death benefit nomination notice
    • Item icon Taxes and duty
      A will can give rise to various tax implications, including transfer duty, land tax, and capital gains tax. Lawyers who do not practise in this area may advise the client to seek appropriate advice from their accountant or taxation adviser before finalising the will. Seeking instruction from a ...

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    • Item icon Family provision claims
      Eligible persons can bring a family provision claim against the estate if they were not adequately provided for in the will: s 3A of the Testator's Family Maintenance Act 1912. Eligible persons include the spouse and the children of the deceased. Children include adopted and stepchildren.

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    • Item icon Intestacy
      The Intestacy Act 2010 provides rules regarding succession if a person dies without a will. Key definitions are:

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    • Item icon Challenging the validity of a will
      Challenging a will questions its validity, as opposed to contesting a will which questions the fairness of its provisions. While each Australian state and territory has laws concerning wills, the circumstances and processes when challenging a will are similar across all the states.

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  • Folder icon C. The will
    • Folder icon Wills for individual
      • Item icon Individual will
      • Item icon Individual will creating testamentary discretionary trust
      • Item icon Individual will creating multiple testamentary discretionary trusts
      • Item icon Individual will with spouse as trustee
      • Item icon Individual will with blended family
    • Folder icon Wills for spouses
      • Item icon Client 1 will for spouses with client 2 as trustee
      • Item icon Client 2 will for spouses with client 1 as trustee
    • Folder icon Wills for blended families
      • Item icon Client 1 will for blended families with client 2 as trustee
      • Item icon Client 2 will for blended families with client 1 as trustee
    • Folder icon Wills creating testamentary discretionary trusts
      • Item icon Testamentary discretionary trusts
        A testamentary discretionary trust is a discretionary trust established by a will. It is also sometimes called a family trust. Although the term family trust is often used in a general sense to mean a testamentary discretionary trust which provides benefits for a testator's family, a family trust ...

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      • Item icon Individual will creating testamentary discretionary trust
      • Item icon Client 1 will creating testamentary discretionary trust with client 2 as executor
      • Item icon Client 2 will creating testamentary discretionary trust with client 1 as executor
      • Item icon Individual will creating multiple testamentary discretionary trusts
      • Item icon Client 1 will creating multiple testamentary discretionary trusts with client 2 as executor
      • Item icon Client 2 will creating multiple testamentary discretionary trusts with client 1 as executor
    • Folder icon Library of clauses, deeds, contracts, and codicils
      • Item icon Asset management clause
      • Item icon Assets - Quarantining assets from a nominated jurisdiction
      • Item icon Beneficiaries - Excluding beneficiaries - Some reasons for excluding beneficiaries
      • Item icon Beneficiaries - Separate fund for particular beneficiary - Clause to establish trust
      • Item icon Body - Burial in reserved plot
      • Item icon Body - Burial with modest funeral
      • Item icon Body - Cremation
      • Item icon Body - Funeral service location
      • Item icon Body - Medical research purposes
      • Item icon Body - Medical research purposes excluded
      • Item icon Body - Organs for donation or research purposes
      • Item icon Charity - Bequests to charity
      • Item icon Civil union - Will in contemplation of civil union
      • Item icon Codicil
      • Item icon Deed not to change will
      • Item icon Deed not to change will in favour of mortgagee
      • Item icon Deemed disclaimer of an interest under this will
      • Item icon Divorce - Clause in contemplation of divorce
      • Item icon Gift of business to employees
      • Item icon Gift to spouse with reasons for children of previous marriage
      • Item icon Guardians - Appointment of guardians
      • Item icon Guardians - Appointment of guardians when other parent has not survived
      • Item icon Home - Right of occupation of home
      • Item icon Hotchpot - Excluding hotchpot
      • Item icon Hotchpot - Including hotchpot
      • Item icon Life estate clause
      • Item icon Life insurance used for debts
      • Item icon Marriage - Will in contemplation of marriage
      • Item icon Monthly payment - Establish a monthly payment not an annuity
      • Item icon Mutual wills - Contract to make mutual wills
      • Item icon Option - Grant an option to purchase to a beneficiary
      • Item icon Solicitor - Direction for appointment of solicitors
      • Item icon Solicitor executor - Clause to charge fees
      • Item icon Specific bequest of digital rights
      • Item icon Trustee - Separate trustee for minor beneficiary
    • Folder icon Library of testamentary discretionary trust provisions
      • Item icon Testamentary discretionary trust provisions - Concise
      • Item icon Testamentary discretionary trust provisions - Extensive
      • Item icon Testamentary discretionary trust provisions creating several trusts
    • Folder icon If required - Special disability trust - Deed, variation, and clauses
      • Item icon Special disability trusts
        This type of trust, created by statute, can be set up to provide for the reasonable long-term care and accommodation needs of a family member with a severe disability. A client can establish a special disability trust inter vivos or by will. If created by a will, it can be either a testamentary ...

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      • Item icon Special disability trust deed inter vivos
      • Item icon Special disability trust deed by will
      • Item icon Deed of variation for special disability trust
      • Item icon Clause to leave money or property via will to pre-existing special disability trust
      • Item icon Clause establishing special disability trust by will with trust deed annexed - Executors as trustees
      • Item icon Clause establishing special disability trust by will with trust deed annexed - Appointing trustees
      • Item icon Clause to establish special disability trust - Executors as trustees
      • Item icon Clause to establish special disability trust - Executors to appoint trustees
      • Item icon Clause to establish special disability trust and discretionary trust for a beneficiary - Executors as trustees
      • Item icon Clause to establish special disability trust and discretionary trust for a beneficiary - Appointing trustees
    • Folder icon Library of attestation clauses
      • Item icon Blind
      • Item icon Can read but unable to write
      • Item icon Can read but unable to write or make a mark
      • Item icon Can write but unable to read
      • Item icon Unable to read but can speak and understand English and can sign
      • Item icon Unable to read or speak English but can sign
      • Item icon Unable to read or write
      • Item icon Unable to speak or read English or write
    • Folder icon If required - Multi-jurisdictional estates and international wills
      • Item icon Multi-jurisdictional estates
        Australians who own property in other countries may wish to bequeath that property by a will. A valid Australian will that appoints executors to administer an estate with property in other jurisdictions may be sufficient, particularly in Commonwealth countries which reseal an Australian grant of ...

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      • Item icon International wills
        Australia has ratified the Convention Providing a Uniform Law on the Form of an International Will. Countries that have ratified the convention will recognise a complying international will as a valid will. Schedule 5 to the Wills Act 2008 sets out the requirements for an international will, ...

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      • Item icon International will certificate
  • Folder icon D. Execution
    • Item icon Execution
      The testator must sign each page of the will in the presence of two witnesses and an authorised person, who must then sign the will in the presence of the testator. While the convention only requires the witnesses and authorised person to sign at the end of the will, it is prudent to have them sign ...

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    • Item icon Testamentary capacity checklist
    • Item icon Letter advising client that documents are ready for signing
    • Item icon Letter reminding client that documents are ready for signing
    • Folder icon If required - Sending will for signing
      • Item icon Letter to client with will to sign
      • Item icon Enclosure - Instructions for signing
  • Folder icon E. Finalising the matter
    • Item icon 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, and never just kept on the file. The testator is provided with a copy of the will that includes the firm’s contact details either on a cover sheet or in a letter ...

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    • Item icon Revising the will
      Testators need to review their will 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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    • Item icon Letter to client finalising the matter
    • Item icon Example invoice incorporating notification of client's rights - TAS
    • Item icon Invoice recital - Wills
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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