Wills, Powers and Advance Care Directives

“ Duty to keep accounts An executor or administrator has a duty to keep records, or accounts, of how the estate is administered, in accordance with their undertaking to the court to do so at the time of applying for a grant: see r 2.04(2)(c) and r 4.04(2)(c) Supreme Court (Administration and Probate) ... ”

“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner 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 ... ”

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

“ 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. ”

“ 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 ... ”

“ 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 ... ”

“ 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: ”

“ 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 ... ”

“ See also Execution below. The formal requirements for a valid will as set out in s 7 Wills Act 1997 are that: ”

“ Revocation Section 12 of the Wills Act 1997 deals with when and how a will can be revoked. ”

“ 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 ... ”

“ 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 … ”

“ 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 ... ”

“ Disposition of property is the area in which true complexity can arise. Substitution and accrual ”

“ 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 ... ”

“ 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 ... ”

“ 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 ”

“ 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 ... ”

“ 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. ”

“ 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, ... ”

“ 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 ... ”