ByLawyers News and Updates

New precedents – Wills creating single testamentary discretionary trust

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Helpful new precedents have been added to all By Lawyers Wills publications for an individual, or a couple, to establish a single testamentary discretionary trust.

These precedents augment our existing precedents which create multiple testamentary discretionary trusts and make for faster and easier drafting where only one testamentary discretionary trust is required.

The new precedent, which is found in the Wills creating testamentary discretionary trust folder, was suggested by a subscriber. We love receiving feedback from firms who use our precedents and we are pleased to provide additional precedents where required.

 

New article by Donna Cooper on Wills and POAs – VIC

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By Lawyers is pleased to be able to share with you Donna Cooper’s article, Should you hand over a copy of a will to an attorney under power?, published in the Reference material folder in our Will, Powers and Estates VIC publications.

Donna’s article commences:

Consider the following common ethical dilemma: You have a long standing elderly client whose adult son telephones to say that he’s moving his mother into a nursing home and would like to come in to a collect a copy of her will from your office this afternoon.  You know the adult son and you are aware of the fact that he is the sole attorney under power for his mother as well as the sole executor of her estate.  He tells you that his mother has recently lost capacity and is not capable of managing her affairs.  Should you hand over a copy of the will to him when he arrives this afternoon?

Donna’s article considers:

  • the duty of confidentiality a solicitor owes to the principal;
  • the application of the Powers of Attorney Act 2014 (Vic) to various scenarios;
  • the options available to a solicitor when approached by an attorney seeking access to the principal’s will; and
  • guidance including the 2013 Succession Laws Report from the Victorian Law Reform Commission and Ethics Committee Ruling R4839, published in 2015 by the Law Institute of Victoria’s Ethics Committee.

Donna Cooper is an Ethics Consultant with ethics4lawyers and an Australian legal practitioner. Donna’s very practical and considered article first appeared in the Institute of Legal Executives September-October 2018 journal, The Legal Executive.

Fees Update – Supreme Court Probate Office – VIC

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New probate filing fees

On 30 September 2018 the Supreme Court (Fees) Regulations 2018 introduces new filing fees for the Supreme Court of Victoria’s probate office.

The By Lawyers Victorian Estates Guide have been updated to reflect these changes.

Family Provision Claims review – VIC

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Our Victorian Family Provision Claims publication has just had a comprehensive review. We invite you to peruse our updated matter plans for Acting for the Plaintiff and Acting for the Estate in Family Provision claims – or ‘TFM’ claims as they are still generally known.

While many updates to By Lawyers publications arise from changes to legislation, developments in case law, or when subscribers ask us for new content, at By Lawyers we also routinely enhance and develop our publications as part of our commitment to continual improvement.

New/reviewed precedents in Acting for the Plaintiff include:

  • Letter to client with initial advice;
  • Initial letter to estate solicitor;
  • Affidavit of the plaintiff (Estate greater than $500K);
  • Position statement of the plaintiff (Estate less than $500K);
  • Affidavit of the plaintiff’s solicitor re costs;
  • Approval of compromise order (new TFM List precedent);
  • Letter to estate solicitor before first directions hearing;
  • Minutes of order for TFM first directions hearing;
  • Example content – Directions;
  • Letter to potential additional defendants;
  • Letter to real estate agent seeking market appraisal of real property;
  • Example content – Plaintiff’s position statement for hearing;
  • Letter to plaintiff finalising the matter.

New/reviewed precedents for Acting for the Estate include:

  • Letter to estate with initial advice;
  • Letter reporting to estate on settlement;
  • Approval of compromise order;
  • Affidavit of executor OR administrator of the estate;
  • Minutes of order for TFM first directions hearing;
  • Example content – Directions;
  • Letter to potential additional defendants;
  • Letter to real estate agent seeking market appraisal for comparison to plaintiff’s market appraisal;
  • Letter to real estate agent seeking market appraisal of estate’s property;
  • Letter to estate solicitor before first directions hearing;
  • Example content – Defendant’s position statement for hearing;
  • Application for leave to appeal;
  • Letter to plaintiff finalising the matter.

Our matter plans are structured so that everything required is at hand. For instance, certifications required on filing your documents in court are included – Overarching Obligations Certification and Proper Basis Certification.

The commentary in both Acting for the Plaintiff and Acting for the Estate has been enhanced, to include:

  • managing the lawyer-client relationship and client identification;
  • time and cost estimates;
  • taking instructions and advising on the claim;
  • assessing the merits of a claim;
  • when the court can make an order;
  • factors the court must consider
  • factors the court may consider;
  • when to negotiate and tips for effective negotiation;
  • mediation;
  • commencing the claim;
  • the first directions hearing date;
  • costs and the supervisory approach taken by the court to costs;
  • the procedure following an order.

Our Victorian Family Provision Claims Guide is a comprehensive and practical resource for small law firms.

Wills – Avoiding family provision claims

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Clients often require advice on avoiding family provision claims, when considering their estate planning.  New commentary has been added to the By Lawyers Wills Guides concerning the issues that should be considered when drafting a will in circumstances where a family provision claim against the estate of the testator appears possible.

This new commentary considers two common issues raised by testators when giving instructions for wills:

  1. How to leave their estate to their partner and prevent children or step children from making a claim on the estate; and
  2. How to leave the estate to their partner, whilst ensuring their children by a prior relationship are benefited on the death of that partner.

The commentary discusses some general principles from the cases and provides a range of likely outcomes for a number of classes of claimants under family provision legislation, which will assist practitioners when they are advising clients who are deciding how to distribute their estates to best avoid a potential claim.

In essence, while there is no absolute way of avoiding a family provision claim by an eligible person against a testator’s estate, appropriate consideration when preparing a client’s will can minimise the prospects or quantum of any claim, or at least ensure the testator has a clear understanding of the issues.

NSW – Estates – Can a beneficiary be evicted?

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In the recent case of Kennedy v Kennedy [2018] NSWSC 1087 Davies J struck out a defence and granted liberty for the executors to obtain default judgement and issue a writ of possession where one of five adult beneficiaries had been residing in the deceased’s house for about two years since the date of death, despite being requested by the executors to vacate. His Honour observed that:

[7] In my opinion the defences filed by the defendant do not disclose any defence to the claim by the executors. Where there is no lease in place, except if a claim was made in the nature of some form of constructive trust, it is doubtful if there could be any defence to the right of the executors to get in all of the estate property including by obtaining possession of the land.

It is the duty of the executor or administrator to get in the estate. If necessary the executor or administrator can apply to the court for a declaration and/or a writ of possession.

This applies where a beneficiary is in occupation of real property owned by the estate without permission and refuses to vacate.

This case has been added to the Estates chapter of By Lawyers 101 Succession Answers (NSW).

Wills and powers of attorney – Costing & Storage

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Costing wills and powers 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 and sometimes reviewing documents such as their self managed superannuation fund deed, or a family trust deed. The intended uses for a power of attorney are many and varied and may involve detailed advice. Any issues of capacity may also add significant time and expense.

Is a flat fee for a ‘simple’ will or a ‘standard’ power appropriate, or should an hourly rate apply?

Are there any scale costs that can be used as a guide? What costs disclosures must be made to the client?

What arrangements should be made for the storage of original wills?

How should copies of documents be managed?

These practical questions are dealt with in new sections of commentary on Costs and Storage in our NSW, Vic, Qld, SA, ACT, Tas and WA wills and powers publications.

All of these publications include the By Lawyers wills and powers Costs Agreements and example invoices, which meet costs disclosure requirements and include disbursements, billing and payment arrangements, client rights notice and solicitor’s lien provisions, among others.

ACT – Estates – New commentary

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Our ACT Estates publications have been enhanced to include new bespoke precedents – Costs agreement – Probate and Costs agreement – Letters of Administration, which can be found in folder A. Getting the matter underway in each of the respective publications.

These estate specific costs agreements are customised to suit an estate matter:

  • listing the work typically carried out;
  • listing fees and expenses typically incurred;
  • detailing for handy reference in a schedule the Supreme Court filing fees;
  • also providing in a schedule the solicitor administration costs that may be applicable.

With so much less work required these custom costs agreements will save you time on every estates matter.

The commentary in both Probate and Letters of Administration on distribution of the estate has also been enhanced to include a new section When can an executor safely distribute? covering the procedural requirements in the ACT to ensure the executor or administrator is protected.

NSW – Family provision – Interim orders

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Prompted by a recent Supreme Court case, we have added a new section called Interim provision to our 101 Succession Answers Reference Guide, which is included in all of the By Lawyers succession related publications for NSW –  Estates; Wills, Powers of Attorney, Appointment of Enduring Guardian & Advance Care Planning and Family Provision Claims.

Pursuant to s 62 Succession Act 2006 it is possible for a plaintiff who seeks provision from an estate as an eligible person under Chapter 3 to make an application for interim provision,
before – in fact while awaiting – the final hearing. Success in such applications is however very rare.

Before it can make an order for interim provision, the court must be ‘of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order’. The cases suggest this is a very high bar indeed, even for a plaintiff with dire financial need.

We invite you to explore the Family Provision section of 101 Succession Answers to find out more on this interesting topic.

TAS – Estates – Guidance Note – Itemised bills and beneficiaries

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In July 2018 the Legal Profession Board of Tasmania identified an issue with an increasing number of complaints against legal practitioners relating to perceived overcharging and failure to communicate with executors/administrators and beneficiaries regarding costs for estate matters.

As a result, the Legal Profession Board issued a detailed Guidance Note for the profession outlining what it considers to be appropriate standards of conduct, aimed at minimising complaints.

The Guidance Note says that, while there is no legislative requirement to provide beneficiaries with itemised bills, it ‘may be advisable’ to do so. This particularly applies where practitioners are also the executor or administrator of the estate and especially if they are seeking commission or proposing to charge in any way not provided for in the will.

The By Lawyers Probate and Letters of Administration commentaries have been updated accordingly.

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