Wills and Estates

“ Generally4 ”

“ Cultural Gifts Program Elder Law – Law Society of New South Wales ”

“ Powers of Attorney and Enduring Guardianship (NSW) Wills – 1001 Conveyancing Answers ”

“ Although not often an issue the first question the lawyer should consider is whether the testator has testamentary capacity. The usual authority quoted concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549 at 565. There Cockburn CJ said: ”

“ Have any orders or binding agreements affecting assets been made pursuant to the Family Law Act 1975 (spouses or de facto partners) that are still subsisting and/or will affect asset distribution? Has the will maker made a will in another jurisdiction regarding assets in that jurisdiction? If so, ... ”

“ At the time of taking instructions, the lawyer should consider the need for an informal will if the circumstances suggest that the client may lose testamentary capacity or die before a formal will can be executed. An informal will pursuant to section 8 of the Succession Act 2006 can be created by ... ”

“ Costing wills can be difficult. It is often not clear at the outset the extent of work which will be required. While many wills are ‘simple’, the complexity of a client’s financial position or their family arrangements can mean hours of time spent taking and confirming instructions, reviewing ... ”

“ A will, apart from one made in special circumstances such as by defence personnel on active duty, is only valid when: It is in writing, and ”

“ The first provision in a will is the usual revocation of previous testamentary acts. Marriage ”

“ The appointment of the executor is usually straightforward and they are usually the major beneficiaries. A minor can be appointed as an executor but is not entitled to a grant if still a minor at the time of death of the testator. Leave will be reserved for the minor to prove on attaining their ... ”

“ Following the appointment of executors the client often provides instructions as to burial or cremation such as: I wish to be cremated and have my ashes deposited at or scattered over... ”

“ Whether or not to include a provision appointing guardians raises difficulties. Most often the decision is made not to appoint guardians, as the children will go to the family best able to care for them which is unknown at the time of making the will. In the event that an intractable dispute arises ... ”

“ Disposition of property is the area in which true complexity can arise. The precedent wills have been drafted to keep the interpretation of the will as straightforward as possible. So, for instance, rather than grapple with the statutory rules of substitution and accrual the wills spell it out. If ... ”

“ The Locke King legislation – see Conveyancing Act 1919 s 145 Charges on property of deceased to be paid primarily out of the property charged – provides that a gift of property real or personal passes the property subject to the charge to which it is liable unless a contrary intention is in the ... ”

“ The rules are found in Chapter 4 of the Succession Act 2006. The term spouse includes a person who was either married to or in a domestic partnership with the intestate. Domestic partnership means a relationship for a continuous period for at least 2 years prior to death or one that has resulted in ... ”

“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”

“ On the death of the member benefits can only be paid to the estate of the member or a SIS dependant of the member or a person in an interdependency relationship with the deceased, being a close personal relationship between two people who live together where one or both provides for the financial, ... ”

“ There can be various taxation implications arising under a will. If you do not practise in this area, the best advice you can give the testator is to seek appropriate advice from their accountant or taxation adviser before the will is finalised, and ensure that the testator does so. Capital gains ... ”

“ Two common questions are raised by testators: How to leave their estate to their partner and prevent children or step children from making a claim on the estate; and ”

“ This is a specific type of trust, created by statute, which can be set up to provide for the long-term reasonable care and accommodation needs of a family member with a severe disability. Such a trust can either be set up inter vivos, or via a will. If created by a will, it can be either as a ... ”

“ If the will is to be kept by the firm in safe custody, it should be entered into a safe custody register and placed in a trackable envelope, never just kept on the file. A copy should be provided to the testator and the copy should always include the contact details of the firm either on a ... ”

“ Testators should be encouraged to review their will regularly. Whilst this may not be of great significance in the case of small estates or when the testator’s estate is to pass to their spouse then issue, it may be relevant in other situations. The events which may lead to a change of will include ... ”