Wills, Powers and Advance Care Directives

“ Until September 2015 voluntary appointments of enduring guardianship, allowing a person (appointor) to appoint another person (guardian) to make lifestyle decisions and certain medical decisions for them should they become incapable of doing so themselves, were made under the Guardianship and ... ”

“ Assets for Care: A Guide for Lawyers to Assist Older Clients at Risk of Financial Abuse LIV Capacity Guidelines & Toolkit ”

“ 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: ”

“ 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 or will affect asset distribution, or are any claims likely in ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ”

“ 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 ... ”

“ 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 ... ”

“ 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: ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. ”

“ 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, ... ”

“ 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 ”

“ 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 ”

“ Mutual wills are made between two people with agreement between them as to the terms of each other’s will. A will is ‘mutual’ and not merely ‘reciprocal’ if a term is included that a will may not be revoked without the consent of the other person. They are often used in blended families to ensure ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”