Wills, Powers of Attorney, Appointment of Guardians and Managers and Advance Care Planning
This comprehensive and practical guide allows practitioners to prepare wills and advise clients with confidence, whether for basic wills or detailed estate planning for complex families or substantial asset portfolios.
The commentary includes various ways to deal with blended families, superannuation death benefits and rights to occupy, discussion of tax treatment of superannuation, use of testamentary trusts, family provision considerations and assets in multiple jurisdictions.
Our comprehensive and methodical Retainer Instructions ensures all necessary information is obtained and the client is properly advised about all aspects of their will.
A comprehensive suite of precedents is provided including various useful clauses and all necessary letters, to make will-drafting and execution simple and risk free.
Recent updates can be viewed on Obiter - our blog.
Guides in this publication
MATTER PLAN
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“ Contents Overview2 ”
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“ This information is included for research and educational purposes only. The interpretation of these cases is that of the author, and the lawyer should read the complete judgment to ascertain whether a particular case may be relevant to the issue before the lawyer. It needs to be appreciated that ... ”
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“ y trusts? For clients with substantial assets, or complicated families, or family members who have medical or personal problems, the use of testamentary trusts have multiple benefits over usual wills summarised below. ”
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“ A number of recent cases have highlighted the need for care where executor’s commission is sought by a ‘professional’ executor such as a legal practitioner, in particular where the will makes no specific provision for the payment of commission. A useful starting point for a discussion of a claim ... ”
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“ Lawyers face difficulties as regards charging costs and/or commission when acting as a lawyer to, and executor of, a deceased estate. Traditionally lawyers practising in all but large city firms would dabble in property law and wills & estates. ”
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“ Most property lawyers will also be involved in the administration of deceased estates and, on occasions, may in fact act as the executor of a deceased estate. This is entirely appropriate, as there will always be clients who do not have a close friend or relative who they can appoint to fulfil ... ”
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“ Every case of course turns on its own facts, but two recent cases, and an ageing population, highlight the need for consideration of a number of issues when agreeing to take on a new wills matter. Fischer v Howe [2013] NSWSC 462 1 ”
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“ Death can impact on a conveyancing transaction in a number of ways, whether the death occurs prior to commencement or during the course of the transaction. Survivorship ”
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“ Article by Rosslyn F. Curnow Nolch, Principal, Rosslyn Nolch Solicitors, 2017. Amendments to the Powers of Attorney Act 2014 (Vic) will be made by the Powers of Attorney Amendment Act 2016 (Vic) which has now received royal assent. The latest default implementation date is 1 May 2017. One of the ... ”
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“ This article first appeared in The Legal Executive September-October 2014 issue. It is a brief summary of planned changes to succession laws in Victoria, which have triggered media comment such as the Herald Sun article, Experts fear planned changes to estate laws will encourage ‘gold diggers’. ... ”
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“ The purpose of this article is to outline the general scope and requirements of the various Powers of Attorney which may be made pursuant to the Powers of Attorney Act 2014. It by no means includes all of the matters covered by the Act. ”
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“ In the preceding article Succession laws in Victoria - Forthcoming changes we reported on the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014, and noted that at the time of preparing the article it was uncertain whether the Bill would be passed, or passed in its then current ... ”
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“ Note: This outline represents the interpretation of the author, is provided for educational purposes only, and does not constitute legal advice. For a more detailed understanding, the reader must analyse the reports for him/herself. There have been two recent inquiries into matters relating to ... ”
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“ Cultural Gifts Program Land Tax ACT Revenue Office ”
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“ Powers of Attorney and Enduring Guardianship (ACT) Wills – 1001 Conveyancing Answers (NSW) ”
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“ A will is a document containing a person’s instructions as to how their property and assets are to be distributed after their death. Failure to make a will results in the distribution of the assets of the deceased being determined by statute. The law relating to wills in the Australian Capital ... ”
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“ 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. Cockburn CJ said: ”
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“ Have any orders or binding agreements affecting assets been made pursuant to the Family Law Act 1975 (Cth) (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 ... ”
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“ At the time of taking instructions, you 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 s 11A Wills Act 1968 can be created by having your client sign ... ”
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“ 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 ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ 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 ”
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“ The first provision in a will is the usual revocation of previous testamentary acts. Marriage ”
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“ The appointment of the executor is usually straightforward and the executor is usually the major beneficiary. A child 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 ... ”
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“ 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... ”
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“ 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 ... ”
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“ 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. If for instance the beneficiary of a bequest does not survive the testator then the bequest is said to fall into ... ”
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“ The Locke King legislation 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 will: s 500 Civil Law (Property) Act 2006 (ACT). A devise of real estate could be made subject to the executors ... ”
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“ The rules are found in Part 3A Administration and Probate Act 1929 (ACT). The term spouse includes a person who was either married to or in a domestic partnership with the intestate. Domestic partnership means a relationship between two people, living together as a couple on a genuine domestic ... ”
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“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”
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“ Under the Superannuation Industry (Supervision) Act 1993 (Cth), on the death of the member benefits can only be paid to the estate of the member or what is known as a SIS dependant of the member or a person in an interdependency relationship with the deceased, being a close personal relationship ... ”
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“ 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 ... ”
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“ 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 ”
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“ A testamentary discretionary trust is simply a discretionary trust established by a will. It is also sometimes called a protective trust, or a family trust. However, although the term ‘family trust’ is often used in a general sense to mean testamentary discretionary trusts which provide benefits ... ”
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“ 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 ... ”
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“ Multi-jurisdictional estates Many immigrants to Australia may have property in other jurisdictions. Appointing executors over the whole of the estate wherever situate may be the most convenient approach. Grants of probate can be resealed if the foreign property is held in another of Her Majesty's ... ”
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“ If the will is to be kept by the firm in safe custody, it should 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 coversheet ... ”
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“ 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 ... ”
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“ COURT AND GOVERNMENT RESOURCES ”
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