Wills and Estates

“ Elder Law – Law Society of New South Wales Land Tax 2019 Information Booklet, Trusts – Revenue NSW ”

“ Powers of Attorney, Appointment of Enduring Guardian and Advance Care Planning (NSW) 101 Succession Answers (NSW) ”

“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”

“ While it is best to obtain written instructions in all types of matters, it is doubly important for wills. The Retainer Instructions on the matter plan should be used. See Informal wills, below. Instructions need to include full details of the family and living arrangements of the testator, their ... ”

“ At the time of taking instructions, the lawyer should consider the need for an informal will, especially if the circumstances suggest that the client may lose testamentary capacity or die before a formal will can be executed. Section 8 of the Act provides that, if a will fails to meet the formal ... ”

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

“ 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 ... ”

“ See also Execution below. The formal requirements for a valid will as set out in s 6 of the Succession Act 2006 are that: ”

“ Revocation Section 11 of the Succession Act 2006 deals with when and how a will can be revoked. ”

“ Executors hold the estate on trust, whether or not they are also appointed as trustees of specific trusts in the will. Where beneficiaries do not take their gifts straight away, for example, because they are under 18 years old or have another legal disability such as mental incapacity, the executor ... ”

“ Whether 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, then ... ”

“ Disposition of property is the area in which true complexity can arise. Substitution and accrual ”

“ Many clients are surprised to learn that their superannuation proceeds are not an asset that is generally part of their estate and therefore may not be dealt with in their will. As superannuation forms an increasingly large proportion of the wealth of Australians, it is important to explain this to ... ”

“ Various taxation implications can arise under a will. For lawyers who do not practise in this area, the best advice that can be given to a testator is to seek appropriate advice from their accountant or taxation adviser before the will is finalised. Seeking instruction to send a copy of the draft ... ”

“ Two common issues 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 ”

“ The rules that apply if a person dies without a will 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 ... ”

“ Challenging a will questions its validity, as opposed to the fairness of its provisions. Whilst each Australian state and territory has its own laws in relation to wills, the circumstances and processes when challenging a will are similar across all the states. ”

“ Section 6 of the Succession Act 2006 provides for how a will is to be executed, namely, that it must be signed by a testator who has capacity and also signed by at least two witnesses, who must be present and see the testator sign. Section 21 Interpretation Act 1987 defines ‘sign’ to include making ... ”

“ 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 ... ”

“ When finalising a matter it is important to terminate the retainer. This informs the client in writing that all work on the matter is complete and that no further work will be undertaken unless the firm is otherwise instructed. If the matter is finalised in such a way that the client retains rights ... ”