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 on Obiter - our News & Updates site.
Guides in this publication
MATTER PLAN
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“ Contents Overview2 ”
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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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“ Assets for Care: A Guide for Lawyers to Assist Older Clients at Risk of Financial Abuse LIV Capacity Guidelines & Toolkit ”
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“ Powers & Advance Care Directives (VIC) Wills - 1001 Conveyancing Answers ”
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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 Victoria is covered by the ... ”
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“ Although not often an issue, the first question that 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. There, Cockburn CJ said: ”
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“ Have any orders or binding agreements affecting assets been made pursuant to the Family Law Act 1975 (spouses or de facto partners) or the Relationships Act 2008 (Vic) (domestic partners or caring partners) which are still subsisting and/or will affect asset distribution, or are any claims likely ... ”
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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. Whilst the status of an informal will is ultimately a matter for the court, it is ... ”
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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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“ A will, apart from one made in special circumstances such as by defence personnel on active duty (although now not usually given specific recognition, whilst noting sections 17-19), 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, noting the commentary above regarding 'concurrent' wills in another jurisdiction: See Wills Act 1997 – section 12 When and how can a will be revoked. Marriage revokes a will unless made in contemplation of marriage ... ”
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“ The appointment of the executor is usually straight forward and they are usually the major beneficiaries, particularly in relation to wills made by spouses. 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: Where a minor is ... ”
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“ General principles It is common for solicitors to be named as executors in their clients’ wills. Subject to the above provisions, an executor is generally entitled to charge executor’s commission in the following cases: ”
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“ An executor has a common law right to possession of the body of the deceased. An administrator does not have the same right. This is consistent with the executor’s burden of burying the deceased, which an administrator does not have. As a practical matter, the distinction probably developed because ... ”
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“ It has also been quite common to include in a will some directions relating to medical care before death, such as: Should there come a time when there is no reasonable hope for my recovery I require that I be allowed to die naturally receiving only comfort care and pain relief even if this shortens ... ”
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“ Infant children’s guardianship is the next consideration. 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 practical terms go to that member of the family as opportunity, ability and ... ”
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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. So, for instance, rather than grapple with the statutory rules of substitution and accrual, the wills spell it out. If ... ”
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“ Will makers are not always certain what is theirs to leave, and due diligence searches may need to be carried out. Additionally, will makers need to consider any potential proceeds to nominated beneficiaries arising out of superannuation or life insurance, as well as the need to keep nominations ... ”
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“ The Locke King legislation – Administration and Probate Act 1958 – section 40 – 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 itself. A device of real estate could be made subject to the ... ”
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“ The rules are found in Part 1A Administration and Probate Act 1958. See s 3 Wills Act 1997 for definitions of ‘domestic partner’, ‘spouse’, and 'registered relationship' and s 3 Administration and Probate Act 1958 for definitions of ‘intestate’, 'partner', ‘spouse’, ‘domestic partner’, 'registered ... ”
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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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“ 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 his/her accountant or taxation adviser before the will is finalised, and ensure that the testator does so. Land tax ”
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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. Grants of probate can be resealed if the foreign property is held in another of Her Majesty's dominions ... ”
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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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