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 at Obiter - News & Updates, via the link above.
Guides in this publication
MATTER PLAN
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily regulated ... ”
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“ Nature of disclosure1 Timing of disclosure2 ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required although clearly as between the practitioner and their client there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In NSW & VIC there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a law practice may, instead of making a disclosure under ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Firms are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A law practice cannot charge for the time spent in preparing an invoice. A law practice cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, then practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ When a retainer is terminated before completion, a practitioner may claim costs for the work done to the date of termination on a quantum meruit basis if: The client terminates the entire retainer; ”
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“ When there are costs owing to the practitioner from the client, the lawyer may retain possession of the client’s documents which are legitimately in the practitioner’s possession. However, the Australian Solicitors’ Rules specify that when a practitioner claims to exercise a lien for unpaid legal ... ”
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“ If a practitioner has an equitable charge over the client’s property incorporated into the costs agreement, ordinarily the practitioner could exercise that power in seeking payment of costs. However, general charges such as a charge over ‘all my estate, rights, title and interest in and to any real ... ”
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“ Sound financial management is absolutely critical to the success of the law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the costs assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ The following outline of costs assessment was written for NSW but the procedure is similar in the other states. This publication will be expanded to cover cost assessment in the other states in due course. In the interim refer to the relevant State Supreme Court. NSW Procedure ”
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“ A client may be entitled to complain to the Legal Services Commissioner about a costs dispute. If the complaint is made after the law practice or client has already applied for assessment of such costs, the assessment will ordinarily be stayed until the complaint has been determined. Similarly, if ... ”
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“ y trusts? For clients with substantial assets, complicated families or family members who have medical or personal problems, the use of testamentary trusts has multiple benefits over usual wills, summarised below. ”
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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, 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 s 11A Wills Act 1968 can be created by having the client ... ”
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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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“ 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 straight forward 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 device 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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“ 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 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 ... ”
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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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