Wills, Powers of Attorney & Advance Care Directives
This valuable and thorough publication allows the practitioner to take instructions using a comprehensive and methodical instruction sheet then prepare wills, powers of attorney and advance care directives with confidence, whether for a single client or complex families and including where the clients have an extensive or complicated asset portfolio.
Precedents include various ways to deal with blended families, superannuation death benefits and rights to occupy.
Commentary includes discussion of tax treatment of superannuation, use of testamentary trusts, family provision considerations and assets in multiple jurisdictions.
Take the worry and risk out of will drafting and maximise its value to your practice by using our excellent and easy to follow publication.
Recent publication 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, Revenue Ruling LT001 - Land tax relief for deceased estates – RevenueSA ”
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“ Powers of Attorney and Advance Care Directives (SA) - Legal Guide and Precedents Papers, Articles and Case Law ”
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“ A will is a document containing a person’s instructions as to how his property and assets are to be distributed after his 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 South Australia is covered by ... ”
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“ Although not often an issue, the first question that might arise for the lawyer is the testamentary capacity of the testator. The usual authority quoted concerning testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549 at 565. There Cockburn CJ said: ”
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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 section 12 of the Wills Act 1936 can be created by having ... ”
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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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“ Section 8 of the Act provides a will is valid only when: it is in writing, and ”
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“ The first provision in a will is the usual revocation of previous testamentary acts. Section 20 provides that marriage revokes a will unless made in contemplation of marriage. Because many people live in de facto relationships and at the time of making their wills have no intention of getting ... ”
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“ 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 ... ”
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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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“ The law relating to guardianship and custody of children in South Australia is governed primarily by the Guardianship of Infants Act 1940. Whether or not to include a provision appointing guardians is difficult. Most often the decision is made not to appoint guardians, as the children will in ... ”
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“ 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 for instance the beneficiary of a bequest does not survive the testator ... ”
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“ 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. A devise of real estate could be made subject to the executors registering a mortgage in favour of the other beneficiaries. ”
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“ Section 72G of the Administration and Probate Act 1919 — Distribution of intestate estate provides: Survived by a spouse or domestic partner and no issue, then the spouse or domestic partner is entitled to the whole of the intestate estate. ”
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“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”
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“ 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, ... ”
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“ Land tax Land ownership as at midnight 30 June each year is used to determine the land tax for the forthcoming financial year. ”
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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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“ In September 2014 the Australian government ratified the Convention Providing a Uniform Law on the Form of an International Will. All countries that are a party to the convention will recognise a complying international will as a valid will. Schedule 1 to the Wills Act 1936 (SA) sets out the ... ”
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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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“ The testator should be encouraged to review their will on a regular basis. 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 ... ”
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