Wills, Powers and 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, supportive attorney appointments, medical treatment powers, advance care directives and support person appointments with confidence, whether for a single client or for 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 the tax treatment of superannuation, the use of testamentary trusts, family provision considerations and dealing with 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 updates can be viewed at Obiter - News & Updates, via the link above.
Guides in this publication
MATTER PLAN
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“ Contents Overview1 ”
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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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“ Assets for Care: A Guide for Lawyers to Assist Older Clients at Risk of Financial Abuse LIV Capacity Guidelines & Toolkit ”
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“ Legislative update The Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 has come into force amending matters such as exceptions to ademption applying to an enduring power of attorney in the same way as exceptions apply to property dealt with by an ... ”
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“ 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. ”
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“ 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 arrangments of the testator, their ... ”
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“ 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 9 of the Act provides that, if a will fails to meet the formal ... ”
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“ 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: ”
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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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“ See also Execution below. The formal requirements for a valid will as set out in s 7 Wills Act 1997 are that: ”
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“ Revocation Section 12 of the Wills Act 1997 deals with when and how a will can be revoked. ”
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“ 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 ... ”
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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 to include a provision appointing guardians is difficult. Most often the decision is made not to appoint guardians, as the children will in practical terms go to that member of the family as opportunity, ability and relationship dictates. In the event that an intractable dispute arises, the ... ”
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“ Disposition of property is the area in which true complexity can arise. Substitution and accrual ”
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“ 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 ... ”
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“ 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 ... ”
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“ Two common issues are raised by testators: how to leave their estate to their partner and prevent children or stepchildren from making a claim on the estate; and ”
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“ The rules that apply if a person dies without a will are found in Part 1A Administration and Probate Act 1958. See s 3 Wills Act 1997 for the important definitions of ‘domestic partner’, ‘spouse’, and 'registered relationship' and see s 3 Administration and Probate Act 1958 for definitions of ... ”
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“ 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. ”
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“ For testators in second or subsequent marriages or relationships, with children from previous ones, leaving the estate to the testator’s current partner but protecting the interest of the testator’s other children after that partner has died is a frequent issue. Problems arise whether or not the ... ”
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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 a testamentary discretionary trust which provides 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. Grants of probate can be resealed if the foreign property is held in another of Her Majesty's dominions ... ”
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“ How a will must be signed Section 7 Wills Act 1997 provides for how a will is to be executed, namely, that it must be signed by a testator who has capacity – or by someone else for the testator, at the testator’s direction and in the testator’s presence – and also signed by at least two witnesses, ... ”
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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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“ 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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