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.

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.

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.

Wills – Special disability trusts

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A special disability trust can be established to specifically provide for the care and accommodation of a family member with a severe disability. If compliant with the statutory requirements it will allow the disabled beneficiary of the trust to retain their full pension entitlement. There are also generous concessions for contributions to a compliant special disability trust.

Along with the recent addition of special disability trusts to By Lawyers Companies, Trusts and Partnerships guide, our Wills guide now also includes detailed commentary and precedents covering special disability trusts.

A special disability trust can either be established in the will, or a direction can be given in the will for the executor to establish a special disability trust from the estate as required. Which option is chosen will depend on the client’s wishes and family circumstances. The Library of discretionary trust and special disability trust clauses in the By Lawyers Wills matter plan contains appropriate clauses for insertion in the will.

It also includes the By Lawyers Special Disability Trust Deed, which fully complies with the legislative requirements.

The new commentary covers everything a practitioner needs to know about establishing a special disability trust for their clients, including:

  • beneficiary eligibility requirements;
  • contribution and concession guidelines;
  • the permitted use of special disability trust funds; and
  • three ways the testator can provide for a disabled beneficiary via a special disability trust:
    • establish the trust inter vivos by deed and provide in the will for a bequest to the trust;
    • establish the special disability trust in the will; or
    • direct the executor of the will to establish the special disability trust, either with or without separate testamentary discretionary trusts.

 

Wills – Additional clause – direction to executor regarding disposal of body

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All By Lawyers wills precedents have been updated to include a clause that directs the executor on the testator’s wishes for their remains. This clause is automated  for LEAP users.

Where the instructions are more detailed, the Burial, Cremation, Medical Research Provisions clauses from the Library of Clauses, Deeds, Contracts and Codicils are also available.

Our Retainer Instructions already include a section for burial, cremation and medical research, so that the testator’s wishes can be discussed and recorded.

Wills – Testamentary discretionary trusts

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The commentary on testamentary discretionary trusts in our Wills publications now has a more in depth discussion of:

  • the benefits of testamentary discretionary trusts;
  • when a testamentary discretionary trust is appropriate;
  • family trust elections.

There are several By Lawyers precedent wills which create testamentary discretionary trusts for individuals and spouses, as well as a library of testamentary discretionary trust clauses. These precedents can be used to establish a single testamentary discretionary trust for all assets and beneficiaries of the estate, or multiple testamentary discretionary trusts for specific beneficiaries. They can also be used to establish additional testamentary discretionary trusts to provide protection for specific assets such as quarantining a family business or to allow for the particular needs of an individual beneficiary due to say drug addiction.

New publication – NSW 101 Succession Answers, including Appointments of Enduring Guardian and Powers of Attorney

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We are delighted to release the latest in our 101 Reference Series – a comprehensive reference guide for NSW dealing with:

  • appointments of enduring guardian;
  • powers of attorney;
  • wills;
  • estates  – probate and administration;
  • family provision.

101 Succession Answers is now included for new and existing subscribers to these NSW publications:

  • Wills, Powers of Attorney, Appointment of Enduring Guardian & Advance Care Planning;
  • Estates;
  • Family Provision Claims.

This is a must-have, easy-reference resource for all firms, providing detailed information in a quickly accessible and searchable format. Tricky questions can be answered quickly using the guide’s alphabetical headings and plain English format. The content can be cut and pasted into letters or emails to clients addressing their specific queries, either in response to an initial enquiry or during the course of the matter.

  • Who is not eligible to be appointed as an enduring guardian?
  • When is an attorney to consider that their principal is incommunicate?
  • Can a solicitor take a benefit under a will that the solicitor has witnessed?
  • Under what circumstances might a grant of probate be revoked?
  • Has the High Court considered the position of an adult child who brings a family provision claim on the basis that their estranged parent previously promised them an inheritance?

If you would like everyone in your firm to be able to readily answer questions such as these, then you will definitely benefit from 101 Succession Answers!

ACT – Wills – Complete publication including Wills commentary and new precedents

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We have had a Wills publication in the ACT for some time, but up until now it has been just the basics.

Our Wills ACT publication now has a comprehensive commentary to accompany the matter plan, with custom ACT precedents such as retainer instructions.

This is a good opportunity to introduce our ACT author, Doug Dawson. Before joining the By Lawyers team, Doug practiced law in the ACT across a broad range of areas.

The Powers of Attorney, Appointment of Guardians and Managers and Advance Care Planning ACT publication will follow shortly.

 

VIC – Estates – Effect of marriage and divorce on will beneficiaries

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Our commentary on the effects of marriage and divorce on wills has been added to. While a will is revoked by the marriage of the testator a number of exceptions apply, as per s 13 of the Wills Act. The commentary on the impact of divorce on a will is also enriched.

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