Hutley's Australian wills precedents [9th edition.] 9780409344042, 0409344044, 9780409344059, 0409344052

Citation preview

HUTLEY’S AUSTRALIAN WILLS PRECEDENTS 9th edition _______________________

The precedents which accompany this book, accessible online using the unique code referred to in the Publisher’s Note, are Microsoft® Word files designed for Windows users. The Publisher cannot guarantee correct formatting of files if other applications are used.

HUTLEY’S AUSTRALIAN WILLS PRECEDENTS 9th edition _______________________

Craig Birtles B Com LLB (Hons) (Syd) Legal Practitioner, New South Wales Accredited Specialist, Wills and Estates Law, New South Wales Senior Associate, Teece Hodgson & Ward, Solicitors, Sydney

Richard Neal LLM (Hons) (Syd) Legal Practitioner, New South Wales Accredited Specialist, Wills and Estates Law, New South

Wales Partner, Teece Hodgson & Ward, Solicitors, Sydney

LexisNexis Butterworths Australia 2016

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

LexisNexis LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au LexisNexis Argentina, BUENOS AIRES LexisNexis Verlag ARD Orac GmbH & Co KG, VIENNA LexisNexis Latin America, SAO PAULO LexisNexis Canada, Markham, ONTARIO LexisNexis Chile, SANTIAGO LexisNexis China, BEIJING, SHANGHAI Nakladatelství Orac sro, PRAGUE LexisNexis SA, PARIS LexisNexis Germany, FRANKFURT LexisNexis Hong Kong, HONG KONG HVG-Orac, BUDAPEST LexisNexis, NEW DELHI Dott A Giuffrè Editore SpA, MILAN LexisNexis Japan KK, TOKYO LexisNexis, SEOUL LexisNexis Malaysia Sdn Bhd, PETALING JAYA, SELANGOR LexisNexis, WELLINGTON Wydawnictwo Prawnicze LexisNexis, WARSAW LexisNexis, SINGAPORE LexisNexis Butterworths, DURBAN Staempfli Verlag AG, BERNE LexisNexis, TAIWAN LexisNexis UK, LONDON, EDINBURGH LexisNexis Group, New York, NEW YORK LexisNexis, Miamisburg, OHIO

National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN:

Birtles, Craig. Hutley’s Australian Wills Precedents. 9th edition. 9780409344059 (hbk). 9780409344042 (pbk). 9780409344066 (ebk). Notes: Includes index. Subjects: Wills — Australia — Forms. Other Authors/Contributors: Neal, Richard. Dewey Number: 346.94054 Cataloguing-in-Publication entry is available from the National Library of Australia http://catalogue.nla.gov.au/ For information about legal deposit and government deposit, please contact the Legal Deposit Unit on (02) 6262 1312 or email [email protected] Information about legal deposit can be found on the Library’s website, Legal Deposit in Australia. Alternatively, the Legal Deposit Unit can be contacted on (02) 6262 1312. © 2016 Reed International Books Australia Pty Limited trading as LexisNexis. 1st ed, 1970; 2nd ed, 1974; 3rd ed, 1980; 4th ed, 1989; 5th ed, 1994; 6th ed, 2004 (reprinted 2005); 7th ed, 2009; 8th ed, 2014 (reprinted 2014). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Arial, ITC Stone Sans Std, ITC Stone Serif Std Printed in China.

Visit LexisNexis Butterworths at www.lexisnexis.com.au

PUBLISHER’S NOTE Important note on accessing precedents accompanying this text The precedents accompanying this text are accessible online using the unique code contained under the scratch panel within the cover of this book. Visit: http://www.lexisnexis.com.au/hutley9thedition and follow the prompts to enter your code. After entering your code, a folder of precedents will be made available to you for download. Please note that the precedents folder may only be accessed three times using your code. The Publisher recommends that the contents of the folder be downloaded in full on your first visit. The precedents are Microsoft® Word files designed for Windows users. The Publisher cannot guarantee correct formatting of files if other applications are used. The publisher, editors, authors, contributors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance on, this publication. © LexisNexis. The legislation reproduced in this work does not purport to be an official or authorised version.

ABOUT THE AUTHORS Craig Birtles is a senior associate of the firm of Teece Hodgson & Ward, Sydney working predominantly in estate litigation and protective matters. Craig was admitted to practice as a solicitor in 2008. He is an Accredited Specialist in Wills and Estates Law and a member of the Society of Trust and Estate Practitioners. He is an adjunct lecturer for the College of Law (Masters of Applied Law), family provision subject and is also a casual lecturer in the Law Extension Committee Diploma of Law, succession law subject. Richard Neal is a partner at Teece Hodgson & Ward. He is widely recognised as a leading lawyer in New South Wales in contested estate claims, family provision claims and complex estate planning matters. Richard’s profile in estate planning and estate disputes is demonstrated by being an Accredited Specialist in Wills and Estates Law in New South Wales a foundation member and former Chair of the Advisory Committee for Specialist Accreditation in Wills and Estates Law in New South Wales, and by his membership of the Probate Users’ Group of the Supreme Court of New South Wales, the Elder Law and Succession Committee of the Law Society of New South Wales, the Society of Trust and Estate Practitioners and the International Academy of Estate and Trust Law. Richard is the co-author of Mason and Handler Succession Law and Practice NSW.

PREFACE This is the second opportunity, following the eighth edition published in 2013, which we have been afforded to bring our mark to Hutley’s Australian Wills Precedents first published in 1970. We have regarded the text as the culmination of the work of the previous authors, on which we have attempted to build. In the ninth edition, the following chapters have been substantially revised: Chapter 1, ‘General Considerations; Estate Planning; Validity of Will; Requirements for; Capacity; Concealment of Will; Order to Produce Will’: We have included additional commentary on undue influence in light of the discussion in Boyce v Bunce [2015] NSWSC 1924. Reference is also made to recent cases dealing with suspicious circumstances, testamentary capacity and wills for persons lacking testamentary capacity. Chapter 2, ‘Drafting a Will Using These Precedents; Taking Instructions and Structuring a Will’: We have updated the commentary on the liability of practitioners in negligence in light of successful appeals in Maestrale v Aspite [2014] NSWCA 182 and Howe v Fisher [2014] NSWCA 286. Chapter 3, ‘Commencement and Testimonium; Wills for Assets in Foreign Countries’: We have included commentary on international wills and relevant accompanying forms in light of all Australian states and territories passing legislation giving effect to the Convention Providing a Uniform Law on the Form of an International Will 1973. Chapter 4, ‘Revocation Clauses’: A new Form 4.03 offers a revocation clause where the testator has wills in several

jurisdictions and only wishes to revoke one of those testamentary acts. Chapter 5, ‘Directions as to Disposal and Use of the Body; Enduring Power of Attorney; Appointment of Enduring Guardian; Directions as to Undue Prolongation of Life’: We have included commentary on the right of burial and have updated legislative references reflecting changes to power of attorney legislation in the Northern Territory, South Australia and Victoria. Chapter 8, ‘Will Made in Contemplation of Marriage; The Effect of Divorce’: We have included additional commentary on a will made in contemplation of marriage generally and the effect of divorce. There are four new forms for situations where the testator does not want his or her will to be revoked on the termination of a marriage, civil partnership, deed of relationship or registered relationship. Chapter 9, ‘Provision for Spouse or Partner’: We have refined the commentary on advice regarding potential family provision claims. Chapter 10, ‘Appointment of Executors’: We have refined the commentary as to the choice and appointment of executors. Chapter 11, ‘Payment of Executors: Gifts in Lieu of Payment; Gifts to be Independent of Acting As Executor or Trustee’: We have refined the commentary on the entitlement of executors to commission, including commission for non-professional work, and on benefits given in the will to the draftsperson following the introduction of the Legal Profession Uniform Law. Chapter 14, ‘Family Provision; Financial Agreement — Prenuptial, Nuptial and Postnuptial’: The commentary has been refined and updated, especially on the general principles applicable to the level of provision made and on methods of avoiding family provision claims.

Chapter 25, ‘Trusts’: We have refined the commentary on the taxation consequences of transferring assets from an estate to a beneficiary ‘pursuant to the terms of the will’ and on trusts for persons with a disability. Chapter 31, ‘Attestation’: We have updated the commentary to reflect the successful appeal in Howe v Fisher [2014] NSWCA 286 and refined the commentary relating to the ‘without more’ requirement and the commentary on wills for persons without testamentary capacity. Craig Birtles Richard Neal Sydney August 2016

ACKNOWLEDGMENTS We are very grateful to the publishers LexisNexis Butterworths for the invitation to prepare the ninth edition of Hutley’s Australian Wills Precedents. Many people have contributed to this book. We would like to thank Pearl Davidson for her research work and checking of references and citations. From LexisNexis Butterworths, we would like to thank Jennifer Burrows and Caitlin Johnson (commissioning editors), Catherine Britton (editor), Kim Thomson (editorial co-ordinator) and Eleanor O’Connor (portfolio manager). Finally, we would like to express our gratitude to Charles Rowland and all of the authors of the previous editions to the seventh edition, who have built up over a number of years a comprehensive stable of estate planning precedents and commentary which formed the base text from which we have worked. Copyright permissions We are very grateful to the following copyright holders for permission to publish copyright material: LexisNexis Butterworths, for permission to publish extracts and adaptations from J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2006 (29.21); D M Haines, Succession Law in South Australia, LexisNexis Butterworths, Australia, 2003 (27.1); Mason and Handler, Succession Law and Practice New South Wales (Handler and Neal), looseleaf, LexisNexis, Sydney (Form 12.01); R F D Barlow, C H Sherrin, R A Wallington, S Meadway and M Waterworth, Williams on Wills, 9th ed, 2008, LexisNexis Butterworths, UK

(Form 7.05; Form 12.01; Form 20.12; Form 22.03; Form 25.01). The 2008 edition of Williams on Wills is an exceptional and comprehensive work in two large volumes. It is not readily available in Australia, but LexisNexis in Sydney has a copy; and Thomson Reuters (Professional) Australia Limited, www.thomsonreuters.com.au (Lawbook Co), for permission to publish extracts and adaptations from J K Aitken and N B Dowdle, Wills Precedents (Victoria), Law Book Co, Sydney, 1986 (31.33); H A J Ford, W A Lee, M Bryan, I G Fullerton and J Glover, The Law of Trusts, Thomson Reuters (24.14, 28.7); J Kessler and M Flynn, Drafting Trusts and Will Trusts in Australia, Lawbook Co, 2008 (24.13, 25.32, 25.34, Form 24.10); and The Leo Cussen Centre for Law, for permission to publish extracts and adaptations from S McNab, Will Making — Practical Considerations, Leo Cussen Institute, 1986 (29.16).

TABLE OF CASES References are to paragraph numbers

A Abbot v Territory Insurance Office Board [2003] NTSC 37 …. 7.11 AG Securities v Vaughan [1988] 3 WLR 1205 …. 26.9 Albert, Re [1967] VR 871 …. 6.3 Alcott v Alcott [2007] NSWSC 11 …. 33.1 Allen v Maddock (1858) 11 Moo PC 427; 14 ER 757 …. 20.14 Allgood v Blake (1872-73) LR 8 Exch 160 …. 19.6 Allhusen v Whittell (1867) LR4Eq 295 …. 26.23 Allison v Farrington [2005] NSWSC 106 …. 14.16 Andco Nominees Pty Ltd v Lestato Pty Ltd; George v Andco Nominees Pty Ltd (1995) 126 FLR 404, 17 ACSR 239, 13 ACLC 835 …. 25.26 Andrew v Andrew [2011] NSWSC 115 …. 14.4 — v — (2012) 81 NSWLR 656; [2012] NSWCA 308 …. 14.4, 14.22 Andrews, Re [1985] 2 Qd R 161 …. 26.15 Andrews v Partington (1791) 3 Bro CC 401 …. 27.9 Angius, Estate of; Angius v Angius [2013] NSWSC 1895 …. 31.11 Anketell, Re (1888) 14 VLR 111 …. 10.12 Appleton, Re (1885) 29 Ch D 893 …. 11.3 Application by Kelso, Re [2010] NSWSC 357 …. 1.16

Application for Grant of Presumption of Death, Re; Ex Parte Jenkins [2008] WASC 49 …. 6.3 Application of Fenwick, Re; Charles (2009) 76 NSWLR 22; [2009] NSWSC 530 …. 31.19 Armitage v Nurse [1998] Ch 241 …. 29.21 Armstrong, Re; Ex parte Gilchrist (1886) 17 QBD 521 …. 25.27 Arndt, Will of [1990] WAR 5 …. 27.18 Ashburner v MacGuire (1786) 29 ER 62 …. 22.2 Ashton, In the Marriage of (1986) 11 Fam LR 457; FLC 91-777 …. 25.26 Astridge v Pepper [1970] 1 NSWR 542 …. 1.13, 1.14, 11.12 Attorney-General (NSW) v Donnelly (1958) 98 CLR 538 …. 20.18 Augustus v Permanent Trustee Co (Canberra) Ltd (1971) 124 CLR 245; 45 ALJR 365; [1971] ALR 661 …. 25.16 Australian Securities and Investments Commission In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey (No 6) (2006) 153 FCR 509; 233 ALR 475; 58 ACSR 141; 24 ACLC 814; 63 ATR 524; [2006] FCA 814 …. 25.24, 25.27, 25.28 Axon v Axon (1937) 59 CLR 395 …. 6.2, 6.3 B Bacon v Pianta (1966) 114 CLR 634 …. 20.18, 28.9, 28.10, 28.12 Badenach v Calvert (2016) 331 ALR 48; [2016] HCA 18 …. 14.5 Bailey v Bailey (1924) 34 CLR 558 …. 1.9, 1.12, 1.13, 1.14 Baillie, Re [1928] VLR 171 …. 29.25 Baird v Smee [1999] NSWSC 759 …. 33.11 Balajan v Nikitin (1994) 35 NSWLR 51 …. 14.12 Banks v Goodfellow (1870) LR 5 QB 549 …. 1.13, 1.14 Bannerman’s Estate, Re (1882) 21 Ch D 105 …. 24.1 Barber, Re (1886) 31 Ch D 665 …. 10.10

Barber, Re (1886) 34 Ch D 77 …. 11.15, 31.29 Barker, Re [1995] 2 VR 439 …. 3.5 Barns v Barns (2003) 214 CLR 169; 196 ALR 65; 77 ALJR 734; [2003] HCA 9 …. 14.7, 14.9, 14.14, 33.1, 33.2, 33.6, 33.9 Barrowcliff, Re [1927] SASR 147 …. 9.2 Bartlett v Barclays Bank Trust Co Ltd (No 1) [1980] Ch 515; 2 WLR 430 …. 29.12, 29.20, 29.23 Basan v Brandon (1836) 3 Sim 171; 59 ER 68 …. 22.2 Basham, Re [1986] 1 WLR 1498 …. 33.5 Bate, Re [1947] 2 All ER 418 …. 6.2 Bath v British & Malayan Trustees Ltd [1969] 2 NSWLR 114 …. 3.3, 3.8 Bauer v Hussey [2010] QSC 269 …. 33.11, 33.12 Beames, Re (1979) 22 SASR 595 …. 22.2 Becker v Public Trustee of New South Wales [2006] NSWSC 743 …. 31.29 Beirnstein, Re [1925] Ch 12 …. 23.1 Belcastro v Belcastro [2004] WASC 111 …. 31.9 Benjamin, Re [1902] 1 Ch 723 …. 19.16 Bentley, Re; Equity Trustees Executors and Agency Co Ltd v Bentley [1955] VLR 33 …. 29.8 Bepper v Steed (SC (NSW), McLaughlin J, 17 December 1996, unreported) …. 14.12 Berger, Re [1989] 2 WLR 147 …. 20.14 Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 …. 27.18, 33.2 Binions v Evans [1972] Ch 359 …. 26.9 Birchall, Re [1940] Ch 424 …. 27.34 Birmingham v Renfrew (1937) 57 CLR 666 …. 27.18, 33.1, 33.2, 33.5, 33.6, 33.8 Bisdee v Smith [2004] TASSC 152 …. 1.5

Blackett v Darcy [2005] NSWSC 65 …. 14.12 Blewitt, Goods of (1880) 5 PD 116 …. 31.27 Boardman, Will of (SC (NSW), Probate Division, 21 December 1988, Needham J, unreported) …. 2.77 Boddington, Re (1884) 25 Ch D 685 …. 9.9 Bolger v McDermott [2013] NSWSC 919 …. 31.11 Bone, Re (1895) 1 ALR 132 …. 10.12 Bone v Commr of Stamp Duties (NSW) (1974) 132 CLR 38 …. 16.1 Boniadian v Boniadian [2004] NSWSC 499 …. 14.22 Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112 …. 1.16 Bourdales v Carroll; Estate Holbrook [2007] NSWSC 1057 …. 10.1 Bowcock (decd), Re; Vox v Bowcock [1968] 2 NSWR 697 …. 22.2 Bowlin, Will of (1919) 19 SR (NSW) 277 …. 11.4 Boyce v Bunce [2015] NSWSC 1924 …. 1.8 — v Rossborough (1857) 6 HL Cas 2; [1843–60] All ER Rep 610 …. 1.8 Boyes v Cook (1880) 14 Ch D 53 …. 19.6 Bradley, Re [1994] 2 Qd R 233 …. 2.63 Bray, Re [1989] 2 Qd R 398 …. 1.17 Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404 …. 7.11, 27.18 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 …. 1.8 Brisbane, Estate of (SC (NSW), Probate, Powell J, 19 June 1992, 107483 of 1992, unreported) …. 27.33 Brown v Heffer (1967) 116 CLR 344 …. 22.2 Browne v Hope [1872] LR 14 Eq 343 …. 27.19 Bryden, Re [1975] Qd R 210 …. 1.9, 31.2 Bull v Fulton (1942) 66 CLR 295 …. 1.9, 1.13, 31.2 Burge v Burge [2015] NSWCA 289 …. 31.11

Burke v Burke [2014] NSWSC 1015 …. 14.4 — v — [2015] NSWCA 195 …. 14.4, 14.22 Burns Philp Trustee Co Ltd v Elliott [1976] 1 NSWLR 14 …. 27.16 Burnside v Mulgrew [2007] NSWSC 550 …. 1.9 Burrows v Cramley [2002] WASC 47 …. 5.1 Burt, Re [1988] 1 Qd R 23 …. 2.24 C Cadell v Wilcocks [1898] P 21 …. 4.1 Cadogan v Cadogan [1977] 1 WLR 1041 …. 14.14 Calcino v Fletcher [1969] Qd R 8 …. 27.1 Calma v Sesar (1992) 106 FLR 446 …. 5.1 Calvert v Badenach [2015] TASFC 8 …. 14.5 Cameron v Murdoch (No 2) [1984] WAR 278 …. 29.20 Campbell v Campbell [2015] NSWSC 784 …. 33.11 Capodici v Capodici (1967) 12 FLR 129 …. 7.13 Carr v Carr (1987) 8 NSWLR 492 …. 29.3, 29.11 Carroll v Cowburn [2003] NSWSC 248 …. 14.22 Cassie v Koumans [2007] NSWSC 481 …. 20.15, 31.9 Cetojevic v Cetojevic [2007] NSWCA 33 …. 14.16 Challen v Pitt [2004] QSC 365 …. 1.13 Chan v Tsui [2005] NSWSC 82 …. 14.6 Cherry v Boultbee (1839) 4 My & Cr 442 …. 16.2 Chester, Re (1978) 19 SASR 247 …. 14.15 Chick v Grosfeld (No 3) [2012] NSWSC 1536 …. 10.14, 11.10 Churchill, Re; Hiscock v Lodder [1909] 2 Ch 431 …. 19.12 Cinnamon v Public Trustee for Tasmania (1934) 51 CLR 403 …. 31.27 Clancy v Clancy [2003] EWHC Ch 1885 …. 1.13

Clarke v Bruce Lance & Co [1988] 1 All ER 364 …. 2.71 Clay v James [2001] WASC 18 …. 25.15 Cleaver, Re [1981] 1 WLR 939 …. 33.1, 33.5, 33.6 Clifford, Re (1979) 22 SASR 353 …. 2.1 Clocchiatti v Pierobon [2014] NSWSC 488 …. 1.9 Coates v Thomas [1947] NZLR 779 …. 14.22 — v Wattson; Estate of Sullivan [2013] NSWSC 604 …. 1.9, 1.14 Coley, Re [1903] 2 Ch 102 …. 9.9 Collins’ Will Trusts, Re [1971] 1 WLR 37 …. 20.12 Comfort, Re [1947] VLR 237 …. 6.2 Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223 …. 16.1 — v Pearse (1953) 89 CLR 51; [1954] AC 91 …. 11.6, 11.15 Commissioner of State Revenue v Serana Pty Ltd [2008] WASCA 82 …. 25.16 Condon v Miller [1981] VR 465 …. 11.7 Conners v Conners, Estate of Conners [2012] NSWSC 181 …. 10.6 Connors v Tasmanian Trustees Ltd (1996) 6 Tas R 267 …. 2.24 Conron v Conron (1858) 11 ER 68 …. 19.9 Coote v Clark [2007] WASC 97 …. 25.16 Corich v Public Trustee as Administrator of Estate of McGregor (decd) [2006] WASC 16 …. 24.10 Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460 …. 23.3 Coverdale v Eastwood (1872) LR 15 Eq 121 …. 33.1 Coxen, Re; McCallum v Coxen [1948] Ch 747 …. 26.10 Crabtree, Re; Fidelity Trustee Co v Crabtree [1954] VR 492 …. 27.32 Craig, Re (1952) 52 SR (NSW) 265 …. 11.7 Crane v Rebello (1852) 19 LT (OS) 192 …. 10.1

Cresswell v Cresswell (1868) LR 6 Eq 69 …. 10.10 Croser, Re (1973) 6 SASR 420 …. 11.13 Cummings, Estate of [1964] SASR 236 …. 10.3 Curran, Re [2010] VSC 455 …. 6.3 Curtain v Curtain [2005] NSWSC 35 …. 33.1 Curtis v Curtis (1825) 3 Add 33; 162 ER 393 …. 14.30 Cuthbertson, Re [1979] Tas R 93 …. 20.13 D Dale, Re [1993] 4 All ER 129 …. 33.2 Dalton v Dalton [2008] WASC 56 …. 31.11 — v Ellis; Estate of Bristow (2005) 65 NSWLR 134; [2005] NSWSC 1252 …. 14.8 D’Apice v Gutkovich Estate of Abraham (No 2) [2010] NSWSC 1333 …. 1.13 Daulizio v Trust Company of Australia [2005] VSCA 215 …. 1.9 Daust, Re [1944] 1 All ER 443 …. 19.6 Davidson, In the Marriage of (No 2) (1990) 101 FLR 373; 14 Fam LR 817; (1991) FLC 92-197 …. 25.25, 25.26 Davis, Re [1953] VLR 639 …. 29.25 Davis v Worthington [1978] WAR 144 …. 9.2 Davis Estate: Application of May [2010] NSWSC 989 …. 27.33 Dawson, Re [1987] 1 NZLR 580 …. 6.6, 26.15, 27.4 Dellios v Dellios [2012] NSWSC 868 …. 1.9 Dempsey v Lawson (1877) LR 2 P & D 98 …. 4.1 Devling, Re [1955] VLR 238 …. 9.9 DH, Will of; W v Perpetual Trustees Tasmania Ltd (Tas SC, Cox CJ, 9 July 1998) …. 14.15 DHN Food v Tower Hamlets [1976] 1 WLR 852 …. 26.9 Di Cecco v Contini [2004] VSC 211 …. 1.13

Di Domizio v Matalone [2012] NSWSC 296 …. 10.6 Dickman v Holley; Estate of Simpson [2013] NSWSC 18 …. 1.8, 1.13 Dijkhuijs v Barclay (1988) 12 Fam LR 367; (1989) 92 FLR 67 …. 14.20 Diprose v Louth (No 2) (1990) 54 SASR 450 …. 1.9 Docker, Will of (1976) 12 ALR 521 …. 10.15 Doland’s Will Trust, Re [1970] Ch 267 …. 27.26 Dolman v Palmer [2005] NSWSC 327 …. 14.20 Doodeward v Spence (1908) 6 CLR 407 …. 5.1 Dore v Billinghurst [2006] QCA 494 …. 1.5, 1.9 Downie v Taylor [1954] VLR 603 …. 26.9 Drummond, Re [1988] 1 WLR 234 …. 27.14 Dunn, Re [1919] NZLR 685 …. 10.10 Dunn v Carter [2004] NSWSC 862 …. 26.8 Dunstan, Re [1931] VLR 222 …. 13.1 E Eastwood, Re (1910) 13 NZGLR 112 …. 31.32 Eckert v Mereider (1993) 32 NSWLR 729 …. 9.2 Edwards; Re, Estate of Edwards [2011] NSWSC 478 …. 5.1, 5.4 Egan v O’Brien [2006] NSWSC 1398 …. 9.2 Ellaway v Lawson [2006] QSC 170 …. 2.63 Elliot v Joicey [1935] AC 209 …. 7.11, 27.3 Elovalis v Elovalis [2008] WASCA 141 …. 10.6, 25.30, 29.21 Equity Trustees Ltd v Wilson [2003] VSC 302 …. 27.1 Estate Ford, Re; Application for Executor’s Commission [2016] NSWSC 6 …. 11.10 Estate Gowing, Re; Application for Executor’s Commission [2014] NSWSC 247 …. 11.1

Estate Late Chow Cho Poon, Re; Application for Judicial Advice (2013) 10 ASTLR 251; [2013] NSWSC 844 …. 25.7 Estate Moran; Teasel v Hooke [2014] NSWSC 1839 …. 31.11 Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934; BC201507207 …. 1.13, 1.14 Estate of Crawley, Re [2010] NSWSC 618 …. 1.16 Estate of Currie, Late of Balmain, Re [2015] NSWSC 1098 …. 31.9, 31.14 Estate of Falco; Falco v Lambert (No 3) [2015] NSWSC 1343 …. 11.10 Estate of Masters (decd), Re; Hill v Plummer (1994) 33 NSWLR 446 …. 31.11, 31.12 Estate of O’Dell, Re [2010] NSWSC 678 …. 31.11 Estate of Parkinson (1988) 143 LSJS 336 …. 31.16 Estate of Prevost, Re [2004] VSC 537 …. 27.33 Estate of Scott, Re Application for Probate [2014] NSWSC 465 …. 31.42 Estate of Torr, Re [2005] SASC 49 …. 31.9 Estate of Varley; Estate of Veldhuis [2007] SASC 420; BC200710243 …. 27.16 Estate of Wai Fun Chan (decd), Re [2015] NSWSC 1107 …. 31.9 Estate of Wilden (decd), Re (2015) 121 SASR 576; [2015] SASC 9 …. 31.9 F Fairweather v Fairweather (1944) 69 CLR 121 …. 22.2, 22.3 Farr v Hardy [2008] NSWSC 996 …. 25.29 Farhall v Farhall (1871) LR 7 Ch App 123 …. 29.20 Fazari v Cosentino [2008] WASC 149 …. 33.2 Federal Commissioner of Taxation v Slater Holdings Ltd (1984) 156 CLR 447; 56 ALR 306; 59 ALJR 89 …. 29.8

Fegan, Re [1928] Ch 45 …. 23.1 Fenwick, Re [1972] VR 646 …. 1.9, 31.2 Fenwick, Re: Application of JR Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530 …. 1.16 Firth v Schubert [2010] QSC 444 …. 5.1 Fischer v Howe (2013) 85 NSWLR 67; [2013] NSWSC 462 …. 2.2, 2.72, 31.1 — v — [2015] HCASL 35 …. 2.2, 31.1 Fison’s Will Trusts, Re; Fison v Fison [1950] 1 Ch 395 …. 22.4 Fletcher, Re; Gillings v Fletcher (1888) 38 Ch D 373 …. 19.7 Fletcher v Usher [1921] NZLR 649 …. 14.22 Foley v Ellis [2008] NSWCA 288 …. 14.4, 14.22 Fox, Re [1997] 1 Qd R 43 …. 27.8 Franguescos v Shaw [1977] 1 NSWLR 660 …. 27.2 Fraser v Fraser [2003] 1 Qd R 367; [2001] QSC 490 …. 2.63 Freme v Clement (1881) 50 LJ Ch 801 …. 27.23 Full Board of the Guardianship and Administration Board, Ex parte (2003) 27 WAR 475; [2003] WASCA 268 …. 2.66 Furse No 5 Will Trust v Cmr of Taxation (1990) 91 ATC 4007; 21 ATR 1123 …. 29.8 G Gadsden v Commissioner of Probate Duties [1978] VR 653 …. 23.3 Gamble, Estate of (1915) 32 WN (NSW) 121 …. 29.11 Garden Clubs of Australia Incorporated v Eyres [2002] NSWSC 801 …. 28.12 Gardiner, Re; Gardiner v Gardiner [1971] 2 NSWLR 494 …. 22.6 Gardner; Re BWV [2003] VSC 173 …. 5.7 Gartside v Sheffield, Young and Ellis [1983] NZLR 37 …. 2.2 Gaynor, Will of [1960] VR 640 …. 14.15

George v Kollias [2007] VSC 46 …. 25.16 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 …. 7.13 Goetze, Re; National Provincial Bank Ltd v Mond [1953] Ch 96 …. 15.30 Goodchild, Re [1996] 1 All ER 670 …. 33.3 Goodman v Dolphin Square Trust Ltd (1979) 38 P & CR 257 …. 29.8 Goods of Bailey, Re (1838) 163 ER 316 …. 31.34 Goodson, Re [1971] VR 801 …. 28.9, 28.12 Gorey v Griffin [1978] 1 NSWLR 739 …. 7.8 Gorton v Parks (1989) 17 NSWLR 1 …. 14.6 Gould, In the Marriage of (1993) 115 FLR 371; 17 Fam LR 156; FLC 92-434 …. 25.26 Gray v Hart [2012] NSWSC 1435 …. 1.13 — v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 …. 1.8 Green, Re (decd); Lindner v Green [1951] Ch 148 …. 33.3, 33.5 Green’s Will Trusts, Re [1985] 3 All ER 455 …. 19.16 Greenland v Baldwin [2006] QCA 293 …. 10.6 Greenslade, Estate of (1988) 48 SASR 414 …. 31.27 Gregory v Hudson (1998) 45 NSWLR 300 …. 2.66, 25.13 Gregson v Taylor [1917] P 256 …. 31.2 Greif, Re; Kantor v Wilding [2005] VSC 266 …. 10.6 Grey Smith, Re [1978] VR 596 …. 31.2 Griffiths v Pruen (1840) 59 ER 851 …. 11.4 Grosvenor, Re [1944] 1 All ER 81 …. 6.2 H Halbert v Mynar [1981] 2 NSWLR 659 …. 6.2, 6.3, 6.6 Hall, Re (1930) 30 SR (NSW) 165 …. 14.29

Hall v Hall (1868) 1 P & D 481 …. 1.10 Halliday v Shoesmith [1993] 1 WLR 1 …. 1.9 Hancock, Re [1971] VR 620 …. 31.1 Hannaford v Hannaford [2010] NSWSC 911 …. 14.20 Hardgrave, Re [1978] Qd R 471 …. 29.5 Hardyman, Re [1925] Ch 287 …. 27.19 Harris, In the Marriage of (1991) 104 FLR 458 …. 25.25 Harris v Skevington [1978] 1 NSWLR 176 …. 28.9 Harrison v Petersen [2000] QSC 415 …. 1.9 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 …. 14.13, 25.14 Hassan, Estate of (2008) 100 SASR 464; [2008] SASC 14 …. 1.9 Hassell v Perpetual Executors Trustees and Agency Co (WA) Ltd (1952) 86 CLR 513 …. 26.23 Hatsatouris v Hatsatouris [2001] NSWCA 408 …. 31.8, 31.10, 31.11 Hawke, Estate of (1973) 6 SASR 278 …. 14.30 Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69 …. 2.71, 2.74, 2.82, 31.29 — v Clayton t/as Clayton Utz (1986) 5 NSWLR 109 …. 2.74, 31.29 — v Perpetual Trustee Co Ltd (1960) 103 CLR 135 …. 20.13 Hay v Simpson (1890) 11 LR (NSW) Eq 109 …. 30.1 Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29 …. 2.53 Head v Kelk [1962] NSWR 1363 …. 33.1 Hedman v Frazer; Egan v Frazer [2013] NSWSC 1915 …. 14.4 Hendry v Perpetual Executors & Trustees Association of Australia Ltd (1961) 106 CLR 256; 35 ALJR 151; [1961] HCA 44 …. 15.31, 20.11, 22.2 Henwood v Public Trustee (1993) 9 WAR 22 …. 31.9, 31.12 Heynatz, Re [2006] QSC 173 …. 6.3

Hickman v Peacey [1945] AC 304 …. 6.2 Hill v Permanent Trustee Co of New South Wales Ltd [1930] AC 720 …. 29.9 — v Van Erp (1997) 188 CLR 159 …. 2.74, 31.29 Hills v Chalk [2008] QCA 159 …. 14.29 Hinsch, Will of (1896) 17 LR (NSW) B & P 21 …. 29.11 Hitchcock v Pratt (2010) 79 NSWLR 687; [2010] NSWSC 1508 …. 14.12 Hodges, Re (1988) 14 NSWLR 698 …. 1.13 Hood, Re [2004] VSC 328 …. 22.3 Hood v Attorney-General (WA) [2006] WASC 157 …. 28.2 Horan v James [1982] 2 NSWLR 376 …. 2.66 Hordern v Hordern [1910] AC 465 …. 10.3 Horgan, Re [1971] P 50 …. 10.14 Horrocks, Re [1939] P 198 …. 28.7 Horsfall v Haywards (a firm) [1999] EWCA Civ 816 …. 2.71 Howard, Estate of (1996) 39 NSWLR 409 …. 6.3 Howe v Fischer [2014] NSWCA 286 …. 2.2 Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134; 23 ALR 321 …. 14.22, 14.29 Hunter v Hunter (1987) 8 NSWLR 573 …. 14.22 — v McKinnon (2002) 81 SASR 229; [2002] SASC 13 …. 1.16 Hurley v Hurley (1947) 75 CLR 289 …. 26.8 Hussey v Bauer [2011] QCA 91 …. 33.11 Hyde v Holland [2003] NSWSC 733 …. 2.63 Hyman v Permanent Trustee Company of New South Wales Ltd (1914) 14 SR (NSW) 348 …. 29.11 I

Imbree v McNeilly [2008] HCA 40 …. 2.71 Ireland v Retallack [2011] NSWSC 846 …. 15.31, 20.11, 20.12, 22.2 — v —[2011] NSWSC 1096 …. 20.11, 20.12 — v — [2011] NSWSC 1510 …. 15.31, 20.11, 20.12 Ivory v Palmer [1975] ICR 340 …. 26.9 J J (or AJ), Re, Estate of (1996) 131 FLR 413 …. 31.5, 31.11 Jagoe v Maguire [2013] NSWSC 1283 …. 14.4 Jaray, Re [1978] 2 NZLR 26 …. 2.34 Jee v Goodman [2001] QSC 474 …. 1.13 Jenkins, Ex Parte [2008] WASC 49 …. 19.16 Jenkins v Jones (1866) LR 2 Eq 323 …. 22.2 John, Re [2000] 2 Qd R 323 …. 2.24 Johnston v Maclarn [2002] NSWSC 97 …. 22.2 Jones, Re (1921) 21 SR (NSW) 693 …. 14.29 Jopling v Inland Revenue Commrs [1940] 2 KB 282 …. 29.11 JP, Will of (1922) 39 WN (NSW) 228 …. 14.30 K K, Re Estate of (1996) 5 Tas R 365 …. 7.11 Kantor v Vosahlo [2004] VSCA 235 …. 1.9, 1.14 Karayannis v Smith [2004] NSWSC 667 …. 14.16 Kauter v Kauter [2003] NSWSC 741 …. 22.6 Keep v Bourke [2012] NSWCA 64 …. 14.22 Keid, Re [1980] Qd R 610 …. 9.2 Kelly v Walsh [1948] IR 388 …. 10.10 Kennedy & Hunt v Griffiths (2011) 5 ASTLR 345; [2011] QSC 369 …. 33.11, 33.12 Kennon v Spry [2008] HCA 56 …. 25.4, 25.30, 25.31, 25.34

Kenny v Wilson (1911) 11 SR (NSW) 460 …. 1.8 Kerr v Visa Vacations [1987] 1 Qd R 311; (1986) 4 ACLC 614 …. 26.12, 29.8 Kerrigan, Will of (1935) 35 SR (NSW) 242 …. 11.7 Khan, Re [1947] QWN 26 …. 10.12 Kilpatrick’s Policies Trusts; Kilpatrick v Inland Revenue Commissioners, Re [1966] Ch 730 …. 6.6 King, Re (1932) 32 SR (NSW) 669 …. 27.34 King v White [1992] 2 VR 417 …. 14.4, 14.17 Kirby v Allen (1998) 9 BPR 16595 …. 21.2 Knox v Till [1999] NZCA 252/98; [1999] 2 NZLR 753 …. 1.14 Korvine’s Trusts, Re [1921] 1 Ch 343 …. 27.1 Kotsar v Shattock [1981] VR 13 …. 2.63, 6.6 Kozak v Matthews [2007] QSC 203 …. 9.17 L Lack, Re [1983] 2 Qd R 613 …. 11.5 Ladd, Re [1932] 2 Ch 219 …. 27.19 Laffan, Will of (1933) 50 WN (NSW) 227 …. 10.12 Lambe v Eames (1871) LR 6 Ch App 597 …. 2.53 Larking, Re (1887) 37 Ch D 310 …. 22.2 Lashko v Lashko [2011] WASC 214 …. 6.3 Lathwell v Lathwell [2007] WASC 83 …. 14.29 Lawrence, Re [1943] Tas SR 33 …. 27.18 Lawrence’s Will Trusts, Re [1972] Ch 418 …. 2.51 Le Cras v Perpetual Trustee Co Ltd [1967] 2 NSWR 706 …. 20.13 Leahy v Attorney-General (NSW) [1959] AC 457 …. 20.18, 28.1, 28.10, 28.12 Leake v Robinson (1817) 35 ER 979 …. 27.23

Leaver, Re [1997] 1 Qd R 55 …. 27.8 Leeburn v Derndorfer [2004] VSC 172 …. 5.2 Leese v Davis (1951) 71 WN (NSW) 39 …. 26.8 Letcher, Re (1993) 114 FLR 397 …. 31.5 Lewis v Bell (1985) 1 NSWLR 731 …. 26.9 — v O’Loughlin (1971) 125 CLR 320 …. 20.11 Lewis’ Will Trusts, Re [1984] 3 All ER 930 …. 20.11 Lewis’s Will Trusts, Re [1937] Ch 118 …. 21.2 Lieberman v Morris (1944) 69 CLR 69 …. 9.17, 14.19, 14.20, 14.32 Lipinski’s Will Trusts, Re [1976] Ch 235 …. 28.12 Littras v Littras [1995] 2 VR 283 …. 2.63 Lloyd v Frape (1922) 23 SR (NSW) 11 …. 20.12 — v Lloyd [2006] QSC 209 …. 19.16 Logan, Re the Will of [1993] 1 Qd R 395 …. 2.53 Londonderry’s Settlement, Re; Peat v Walsh [1965] Ch 918 …. 14.13 Long v Long [2004] NSWSC 1002 …. 27.16 Lord Londesborough v Somerville (1854) 52 ER 363 …. 19.12 Louth v Diprose (1992) 175 CLR 621; 110 ALR 1 …. 1.9 Lovell, Re [1985] 1 Qd R 209 …. 28.8 Low v Perpetual Trustees WA Ltd (1995) 14 WAR 35 …. 33.2 Lucas, Re [1966] VR 267 …. 31.28 Lukic, Re [2015] NSWSC 822 …. 1.16 Lysaght, Matter of (1987) 48 SASR 457 …. 27.8, 27.14 Lyus v Prowsa Ltd [1982] 1 WLR 1044 …. 26.9 M Macaudo, Re the Will of [1993] 2 Qd R 269 …. 2.94 MacDonald v MacDonald [2012] NSWSC 1376 …. 31.11

Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42 …. 25.7 Maestrale v Aspite (2012) 9 ASTLR 575; [2012] NSWSC 1420 …. 2.2 — v — [2014] NSWCA 182 …. 2.2 — v — (No 2) [2014] NSWCA 302 …. 2.2 Mango Boulevard Pty Ltd v Spencer [2008] QCA 274 …. 25.30 — v —[2008] QSC 117 …. 25.30, 29.21 Marsland, Re [1939] Ch 820 …. 33.3 Martin v Fletcher [2003] WASC 59 …. 1.13 Mason v Ogden [1903] AC 1 …. 27.23 Mavrideros v Mack (Supreme Court of New South Wales, Young J, 16 June 1997, unreported) …. 10.6 — v — (1998) 45 NSWLR 80 …. 10.6 Max Cooper and Sons Pty Ltd v University of New South Wales [1979] 2 NSWLR 257 …. 20.14 Maxwell, Re [1906] 1 IR 386 …. 11.4 Maxwell, Re (1929) 45 TLR 215 …. 14.30 McBride v Hudson (1962) 107 CLR 604 …. 21.2, 22.2 McCallum, Re; Baird v McCallum (1907) 7 SR (NSW) 523 …. 17.4 McCann v McCann; Estate of McCann (2013) 11 ASTLR 547; [2013] NSWSC 78 …. 31.11 McClung, Re Will of [2006] VSC 209 …. 10.14 McClymont v Hooper (1973) 128 CLR 147 …. 2.37 McComb, Re [1999] 3 VR 485 …. 31.12, 31.15 McCracken v Attorney-General for Victoria [1995] 1 VR 67 …. 28.7 McDonald v Ellis [2007] NSWSC 1068 …. 14.13, 15.16, 26.5 McEnearney v McEnearney [1980] FLC 90-866 …. 7.13 McFetridge, Re; Speakman v McFetridge [1950] NZLR 176 …. 20.13

McKillop, Re Will of (1983) 65 FLR 392 …. 14.31 McKinnon v Voigt [1998] 3 VR 543 …. 1.5, 1.9, 11.12, 31.2 McLaren v McLaren [1919] NZGLR 287 …. 1.14, 2.6 McLean v Attorney General of New South Wales [2002] NSWSC 377 …. 28.15 McPhie v Mackay [1975] 2 NSWLR 369 …. 23.1 Medwin, Re (1919) 15 Tas LR 75 …. 10.10, 11.15, 31.29 Miller v Cameron (1936) 54 CLR 572 …. 10.6 — v Cooney [2004] NSWCA 380 …. 2.72 Miller v Miller (2000) 50 NSWLR 81 …. 31.29 Milton, Will of [1999] VSC 417 …. 10.14 Mitchell v Gard (1863) 5 Sw & Tr 275 …. 1.8 Monckton, Re [1996] 2 Qd R 174 …. 2.24 Moore v Moore (CA (NSW), 16 May 1984, Hutley, Samuels and Glass JJA, unreported) …. 26.8, 26.10 Morice v Bishop of Durham (1804) 32 ER 656 …. 20.18 Morley v Bird (1798) 30 ER 1192 …. 27.21 Morris, Re [1971] P 62 …. 1.9, 31.2 Mortensen v State of New South Wales (SC (NSW), CA, Mahoney, Meagher and Sheller JJA, 12 December 1991, unreported) …. 27.1, 27.16, 27.25 Mostyn v Mostyn (1989) 16 NSWLR 635 …. 2.93 Muir v Archdall (1918) 19 SR (NSW) 10 …. 14.21 Munro, Estate of; Macey v Finch [2002] NSWSC 933; Murdoch v Attorney-General (1992) 1 Tas R 117 …. 20.18 — v Cameron (1986) 63 ALR 575 …. 29.20 Muschinski v Dodds (1985) 160 CLR 583 …. 23.3 N N, Re [1950] VLR 139 …. 14.30

Napper v Miller [2003] NSWSC 376 …. 7.11, 27.18 National Mutual Trustees Ltd v Gooding [1990] VR 791 …. 26.8 Neville, Re [1925] 1 Ch 44 …. 16.1 Neville Estates Ltd v Madden [1962] 1 Ch 832 …. 28.12 Newbery, In the Marriage of (1977) 27 FLR 246 …. 7.13 Newey, Re [1994] NZLR 590 …. 33.2, 33.8 Nicholson v Knaggs [2009] VSC 64 …. 1.14 Nock v Austin (1918) 25 CLR 519 …. 1.9 NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 …. 31.11 O Oakes v Oakes (1852) 68 ER 680 …. 22.2 O’Brien v McCormick [2005] NSWSC 619 …. 19.12, 20.12 O’Callaghan, Re [1972] VR 248; [1972] VicRp 24 …. 22.2 O’Connell v Shortland (1989) 51 SASR 337 …. 1.14 O’Connor’s Will Trusts, Re; Westminster Bank Ltd v O’Connor [1948] Ch 628 …. 21.2 Octavo Investments Pty Ltd v Knight (1979) 27 ALR 129 …. 29.20 Olive, Re [1989] 1 Qd R 544 …. 27.24, 27.33 Oreski v Ikac [2007] WASC 195 …. 31.11 Orr v Slender [2005] NSWSC 1175 …. 22.2 Osborne v Estate of Osborne [2001] VSCA 228 …. 33.2, 33.8 — v Smith (1960) 105 CLR 153 …. 1.8 O’Shaughnessy v Mantle (1986) 7 NSWLR 142 …. 14.20 P Pagano v Ruello [2001] NSWSC 63 …. 26.8 Pajic v Lepan [2006] NSWSC 1123 …. 10.6 Palmer v Bank of New South Wales (1975) 133 CLR 150 …. 14.8,

14.11, 33.6 Parker v Public Trustee (unreported, SC (NSW), 31 May 1988) …. 26.5 Parry v Haisma [2012] NSWSC 290 …. 19.6 Paulin, Re [1950] VLR 462 …. 14.22, 14.29 Pauton, In the Will of (1909) 26 WN (NSW) 51 …. 11.5 Peacock, Re [1957] Ch 310 …. 9.2 Pearce, Re [1936] SASR 137 …. 29.11 Pedulla v Nasti (1990) 20 NSWLR 720 …. 14.21 Perera v Perera [1901] AC 354 …. 1.13 Permanent Trustee Co Ltd v The Northcott Society [1999] NSWSC 742 …. 27.26 Permanent Trustee Co of New South Wales Ltd v Royal Prince Alfred Hospital (1944) 45 SR (NSW) 339 …. 19.12 Perpetual Trustee Co Ltd v Tasker (1913) 13 SR (NSW) 322 …. 11.6 — v Walker (1941) 41 SR (NSW) 174 …. 27.1, 27.16 — v Wright (1987) 9 NSWLR 18 …. 27.14 Petrovski v Nasev, Re; Estate of Janakievska [2011] NSWSC 1275 …. 1.8 Pettit v Mowder [1957] St R Qd 493 …. 9.2 Phillpot v Olney [2004] NSWSC 592 …. 1.13 Plaister, Re (1934) 34 SR (NSW) 547 …. 6.2 Plowright v Burge [2005] VSC 490 …. 1.16, 28.2 Plunkett v Lewis (1844) 67 ER 403 …. 19.7 Poe, Re; Poe v Poe [1942] Ir R 535 …. 27.9 Pogorelic v Banovich [2007] WASC 45 …. 14.17 Poletti v Jones(2015) 13 ASTLR 113; [2015] NSWCA 107 …. 14.22 Pooley, Re (1888) 40 Ch D 1 …. 10.10, 11.15, 31.29 Pope v Christie (1998) 144 FLR 380 …. 14.16

— v Pope [2001] SASC 26 …. 10.6 Porteous v Rinehart (1998) 19 WAR 495 …. 10.6 Powell v Monteath [2006] QSC 24 …. 14.29 Power, Re; Public Trustee v Hastings [1947] 1 Ch 572 …. 26.12, 29.8 Prince v Barnett [1997] 1 VR 582 …. 21.1 Prosper v Wojtowicz [2005] QSC 177 …. 19.16 Public Trustee v Attorney-General (SC (NSW) (Eq), 3 August 1984, No 3854 of 1983, Cohen J, unreported) …. 6.2, 6.3 — v Eastwood [2006] NSWSC 819 …. 1.13 — v Hayles (1993) 33 NSWLR 154 …. 9.2, 27.26 — v Kuehn [1983] 1 NSWLR 195 …. 11.3 — v Phillips [2004] SASC 142 …. 1.16 — v Smith [2008] NSWSC 397 …. 25.24, 25.27, 25.29, 25.30, 25.32 — v Till [2001] 2 NZLR 508 …. 1.14 Public Trustee of Queensland v Jacob [2007] 2 Qd R 165; [2006] QSC 372 …. 27.15, 27.18 Purnell v Moon (1991) 22 NSWLR 499 …. 14.24 Purton, Estate of (1935) 53 WN (NSW) 148 …. 11.10 Q Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 …. 2.2 R R v Skinner [1972] 1 NSWLR 307 …. 2.93 Ramage v Waclaw (1988) 12 NSWLR 84 …. 10.3 Ramcoomarsingh v Administrator General (Trinidad and Tobago) [2002] All ER (D) 259 (Dec); [2002] UKPC 67 …. 1.9 Ramsay v Lowther (1912) 16 CLR 1 …. 27.1

Rawack v Spicer [2002] NSWSC 849 …. 27.16 Ray v Moncrief [1917] NZLR 234 …. 14.22 Ray’s Will Trusts, Re [1936] 1 Ch 520 …. 10.10 Rayner, Re; Couch v Warner (1925) 134 LT 141 …. 27.34 RB, a Protected Estate Family Settlement, Re [2015] NSWSC 70 …. 1.16 Recher’s Will Trusts, Re; National Westminster Bank Ltd v National Anti-Vivisection Society Ltd [1972] Ch 526 …. 28.2, 28.14 Reddie v Cornock [2005] NSWSC 187 …. 20.11 RL v NSW Trustee & Guardian (2012) 84 NSWLR 263; [2012] NSWCA 39 …. 22.2, 22.3 Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177 …. 14.29 Robertson v Smith [1998] 4 VR 165 …. 1.5, 1.8, 1.9, 31.2 Robinson v Ommanney (1883) 23 Ch D 285 …. 33.3 — v Pinegrove Memorial Park Ltd (SC (NSW), Eq D, Waddell CJ, 5 June 1986, unreported) …. 5.2 — v Spratt [2002] NSWSC 426 …. 1.14, 31.33 Rooke, Re; Jeans v Gatehouse [1933] Ch 970 …. 20.12 Roos v Karpenkow (1998) 71 SASR 497 …. 1.5, 1.9, 11.12, 31.2 Ross v Caunters [1980] Ch 297; [1979] 3 WLR 605 …. 2.74, 31.29 Rowland, Re [1963] Ch 1 …. 6.2 Royce’s Will Trusts, Re [1959] Ch 626 …. 11.15 Russell v Scott (1936) 55 CLR 440 …. 14.8 Rutter v McCusker [2008] NSWSC 1289 …. 10.3, 10.6 Ruxton, Re [1946] VLR 334 …. 14.22 Ryan, Re [1990] 3 NZLR 91 …. 6.3 S

Sacks v Gridiger (1990) 22 NSWLR 502 …. 11.7, 11.10, 11.15, 31.29 Sands, Will of (1943) 44 SR (NSW) 281 …. 10.17 Scattini v Matters [2004] QSC 459 …. 1.13 Schaefer v Schuhmann [1972] AC 572 …. 14.7, 33.9 Schaverein v Jones [2007] NSWSC 1429 …. 10.6, 15.16 Schlesinger v Bowman [2007] TASSC 57 …. 1.13, 31.5 Schmidt v Rosewood Trust Ltd [2003] UKPC 26; [2003] 2 AC 709 …. 14.13, 25.2 Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331 …. 3.3 Seale v Perry [1982] VR 193 …. 2.74, 31.29 Secretary, Re; Department of Family and Community Services and Zangari (1998) 54 ALD 155 …. 22.6 Selby-Bigge, Re [1950] 1 All ER 1009 …. 31.32 Seton-Smith, Re; Burnand v Waite [1902] 1 Ch 717 …. 20.13 Shah v Perpetual Trustee Co (1981) 7 Fam LR 97 …. 14.15 Shannon, Will of [1977] 1 NSWLR 210 …. 11.7, 11.10, 11.11, 11.12, 11.13 Shelton v Kilsby [2000] WASC 180 …. 27.18, 27.34 Sheppard, Will of [1972] 2 NSWLR 714 …. 11.10, 11.11 Sherriff, Will of [1971] 2 NSWLR 438 …. 26.12, 29.8 Sibley v Perry (1802) 32 ER 211 …. 27.14 Sikorski v Michalowski [2008] NSWSC 404 …. 10.6 Silkman v Shakespeare Haney Securities Ltd (2011) 8 ASTLR 117; [2011] NSWSC 148 …. 14.13, 25.14 Simmons, Estate of (1990) 56 SASR 1 …. 2.93 Simpson, Re (1977) 121 Sol Jo 224 …. 1.14 Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40 …. 9.17, 14.4, 14.19

Sita v Sita [2005] NSWSC 461 …. 14.20 Slater, Re; Slater v Slater [1907] 1 Ch 665 …. 22.2 Slattery, Estate of (1909) 9 SR (NSW) 577 …. 10.1 Smee v Baird [2000] NSWCA 253 …. 33.11 Smith v Johnson [2015] NSWCA 297 …. 14.22 — v Tamworth City Council (1997) 41 NSWLR 680 …. 5.3 Smurthwaite v Stratford [2007] WASC 68 …. 31.2 Spanish Prospecting Co Ltd, Re [1911] 1 Ch 92 …. 29.8 Spratt v Hayden [2010] WASC 340 …. 5.1 Stable, Re [1957] St R Qd 90 …. 2.53 Staib v Powell [1979] Qd R 151 …. 33.1 Standley, Estate of (1982) 29 SASR 490 …. 31.27 State Trust Corporation of Victoria v Taylor [1993] 1 VR 282 …. 20.13 Stein v Sybmore Holdings Pty Ltd (2006) 64 ATR 325; [2006] NSWSC 1004 …. 25.16 Stephens v Stephens [2007] QSC 016 …. 27.24, 27.33 Stern v McArthur (1988) 165 CLR 489; 81 ALR 463 …. 33.1 Steward (deed), In the Will of [1964] VR 179 …. 1.9, 11.12, 31.2 Stone v Hoskins [1905] P 194 …. 33.8 Stott, Re [1980] 1 WLR 246 …. 1.9 Stratton v Simpson (1970) 125 CLR 138 …. 28.7 Summerville v Walsh [1998] NSWCA 222 …. 31.39 Sutherland v Public Trustee [1980] 2 NZLR 536 …. 21.5 Sutton, Re [1938] St R Qd 246 …. 27.34 Synge v Synge [1894] 1 QB 466 …. 33.1, 33.2 Szabo v Battye [2006] NSWSC 1351 …. 31.33 Szlazko v Travini [2004] NSWSC 610 …. 26.8

T Tanner v Stocks and Realty (Premises) Pty Ltd [1972] 2 NSWLR 722 …. 24.11 Tarca, Re (1981) 29 SASR 152 …. 22.2 Tatham v Huxtable (1950) 81 CLR 639 …. 2.66 Tausz v Elton [1974] 2 NSWLR 163 …. 14.29 Taylor, Estate of [1965] SASR 136 …. 11.4 Taylor v Burgess [2002] NSWSC 676 …. 14.14 Tepper’s Will Trusts, Re [1987] 2 WLR 729 …. 2.63 Thomas, Estate of (SC (NSW), 6 April 1990, Needham J, unreported) …. 20.14 Thomas, Re [1930] 1 Ch 194 …. 29.3 Thompson v Leach (1690) 86 ER 391 …. 10.16 Thurlstane (Aust) Pty Limited v Andco Nominees Pty Limited [1997] NSWCA 317 …. 25.26 TM, Will of [1929] QWN 2 …. 14.22 Tong, Re; Hilton v Bradbury [1921] 1 Ch 202 …. 27.2 Tonkiss v Graham [2002] NSWSC 891 …. 31.29 Townsend v Townsend [2006] NTSC 7 …. 33.1 Treacey v Edwards (2000) 49 NSWLR 739; [2000] NSWSC 846 …. 20.14, 20.15, 31.9, 31.12 Treloar, Estate of (1984) 36 SASR 41 …. 2.3 Trethewey, Re (2002) 4 VR 406; [2002] VSC 83 …. 31.9, 31.10 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; 62 ALJR 508 …. 33.1 Trotter, Re [1899] 1 Ch 764 …. 11.15 Trust Co of Australia Ltd v Krannin [2006] QSC 280 …. 27.24 Trustees, Executors and Agency Co Ltd v Scott (1898) 24 VLR 522 …. 22.2 Tu v Tu [2008] NSWSC 458 …. 1.13

Tucker, Estate of [1962] SASR 99 …. 1.6, 1.14, 2.1 Tufala v Marsden [2011] QSC 222 …. 5.1 Tyrrell v Painton [1894] P 151 …. 1.9 U University College of North Wales v Taylor [1908] P 140 …. 20.14 University of New South Wales v Max Cooper and Sons Pty Ltd (1979) 54 ALJR 21 …. 20.14 Upton v Downie [2007] NSWSC 1095 …. 10.6 V Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 …. 29.20 Varella v Marsicovetere [1954] VLR 550 …. 26.9 Varley, Estate of; Veldhuis, Estate of [2007] SASC 420 …. 3.3 Vasiljev v Public Trustee [1974] 2 NSWLR 497 …. 10.3, 14.31 Vauk, Estate of (1986) 41 SASR 242 …. 1.13, 2.3, 31.9 Vernon v Watson [2002] NSWSC 600 …. 1.5, 1.6, 1.9, 31.2 Verrall v Jackson [2006] QSC 309 …. 9.2 Viertel, Re [1997] 1 Qd R 110 …. 22.2 Vigolo v Bostin (2005) 221 CLR 191; 213 ALR 692; [2005] HCA 11 …. 14.4, 14.6 W Wade v Harding (1987) 11 NSWLR 551 …. 14.16 Wakeham v Mackenzie [1968] 1 WLR 1175 …. 33.1 Walker, Re; Walker v Walker [1930] 1 Ch 469 …. 27.34 Walker v Geo Medlicott & Son (a firm) [1999] 1 WLR 727 …. 2.71 Ward, Re Estate of [2006] SASC 161 …. 14.30 Waterton, Estate of; Mulhall v Kelly [2006] VSC 407 …. 22.2 Watkinson, Re [1952] VLR 123 …. 6.2

Watts v Public Trustee for Western Australia [1980] WAR 97 …. 2.74, 31.29 Wedd v Wedd [1948] SASR 104 …. 7.13 Weir v Matthews [2001] NSWSC 824 …. 10.6 Wendt v Orr [2004] WASC 28 …. 10.6 Were, Will of (1886) 12 VLR 271 …. 10.12 Wesley v Wesley (1998) 71 SASR 1 …. 7.11, 27.3 West v Weston (1998) 44 NSWLR 657 …. 19.16 West, Ex parte (1784) 28 ER 1306 …. 27.32 Westfield Queensland No 1 Pty Ltd v LendLease Real Estate Investments Ltd [2008] NSWSC 516 …. 25.16 White, Estate of [1914] P 153 …. 14.30 White, Re; Tweedie v Attorney-General [2003] 7 VR 219; [2003] VSC 433 …. 11.5, 11.8 White v Barron (1979) 144 CLR 431 …. 9.17, 24.10, 24.15, 26.8 — v — (CA (NSW), 26 June 1979, unreported) …. 24.10 White v Jones [1995] 2 AC 207 …. 2.2 Wiblen v Feros (1998) 44 NSWLR 158 …. 26.28, 29.11 Wight v Olswang [1999] EWCA Civ 1309 …. 29.24 Wilhelmsen, In the Will of (1939) 56 WN (NSW) 39 …. 31.1 Wilkie v Equity Trustees Executors and Agency Co Ltd [1909] VLR 277 …. 26.5 Wilkinson, Goods of (1881) 6 PD 100 …. 31.27 Will of AB, Re [1930] NZGLR 281 …. 31.32 Will of McClung; In Re [2006] VSC 209 …. 11.7 Williams, Re [1897] 2 Ch 12 …. 2.53 Williams, Re [1980] 1 NZLR 300 …. 27.34 Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269 …. 10.6 Willis, Re [1996] 2 Qd R 664 …. 20.2, 22.3, 26.3, 26.10

Wilson, Re; Wilson v Mackay [1967] 1 Ch 53 …. 27.2 Wing v Angrave (1860) 8 HL Cas 183; 11 ER 397 …. 6.2 Wingrove v Wingrove (1886) 11 PD 81 …. 1.10 Wintle v Nye [1959] 1 All ER 552; [1959] 1 WLR 284 …. 1.8, 1.9, 11.12 Witham v Witham [2000] WASC 236 …. 10.3 Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267 …. 1.13 Woodley-Page v Simmons (1987) 217 ALR 25 …. 1.10, 2.14, 2.69, 31.40 Woolnough v Public Trustee [2005] TASSC 50 …. 14.17 Worth v Clasholm (1952) 86 CLR 439 …. 1.9, 31.2 Wragg, Re [1919] 2 Ch 58 …. 29.8 Wynn, Re [1984] 1 WLR 237 …. 14.21 Wynn’s Will Trusts, Re [1952] 1 All ER 341 …. 29.25 Y Yazbek v Yazbek [2012] NSWSC 594 …. 20.16, 31.10, 31.11, 31.14 Yearwood, Estate of (1982) 30 SASR 169 …. 10.14 Young, Re [1923] VLR 6 …. 10.10 Z Zimmerman, Estate of; Cocks v Colyer (SC (NSW), PD, Powell J, 22 March 1991, unreported) …. 11.4 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 …. 1.9 Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd [2007] WASC 62 …. 33.1

TABLE OF STATUTES References are to paragraphs unless otherwise indicated

Commonwealth Australian Consumer Law …. 15.29 Bankruptcy Act 1966 s 116(2)(d) …. 17.3, 17.5 Charities Act 2013 …. 28.7 Competition and Consumer Act 2010 Sch 2 Pt 2.1 …. 15.29 Family Law Act 1975 …. 7.5, 7.13, 7.15, 7.16, 14.19, 14.32 Pt VII …. 7.12, 7.13 Pt VII Div 2 …. 7.13 Pt VIIIA …. 14.19, 14.32 Pt VIIIAA …. 25.4, 25.34 ss 61A–61F …. 7.13 s 61B …. 7.13, 7.14 s 61C …. 7.13, 7.16 s 61C(1) …. 7.13, 7.16 s 64B(6) …. 7.13 s 69ZH(2)(b) …. 7.16 s 87 …. 14.19

s 90B …. 14.32 s 90C …. 14.32 s 90D …. 14.32 s 90DA …. 14.32 s 90DA(1) …. 14.32 s 90H …. 14.32 s 90K …. 14.20 Income Tax Assessment Act 1936 …. 2.12 Pt III Div 6AA …. 25.3 s 99 …. 25.12 s 99(2) …. 25.12 s 99A …. 25.12 s 101A …. 29.14 s 102AG(2)(a) …. 29.8 Sch 2F …. 2.12 Income Tax Assessment Act 1997 …. 15.2, 28.5 Pt 3-1 …. 15.2 Pt 3-3 …. 15.2 Div 104 …. 15.2, 15.3, 15.5 Div 118 …. 15.3, 15.5 Div 152 …. 15.3 s 30-15 …. 15.13 s 100-10(1) …. 15.2 s 100-35 …. 15.9 s 100-40(2) …. 15.9 s 102-5 …. 15.3 s 102-5(1) …. 15.2 s 102-15 …. 15.2, 15.3 s 104-5 …. 15.2, 15.14

s 104-10(5) …. 15.5 s 104-215(1)(a) …. 15.14 s 104-215(1)(b) …. 15.14 s 104-215(1)(c) …. 15.14 s 104-215(2) …. 15.14 s 104-215(3) …. 15.14 s 104-215(4) …. 15.14 s 108-5 …. 15.3, 15.4, 15.5 s 108-7 …. 15.15 s 110-25(2)–(6) …. 15.9 s 110-55 …. 15.9 s 114-10(6) …. 15.10 s 115-5–115-50 …. 15.10 s 115-15 …. 15.10 s 115-20 …. 15.10 s 115-25 …. 15.10 s 115-25(1) …. 15.10 s 115-30(1) Item 3 …. 15.10 s 115-30(1) Item 4 …. 15.10 s 115-100 …. 15.10 s 115-230 …. 9.17, 15.22, 26.26 s 118-5 …. 15.5 s 118-10(1) …. 15.5 s 118-10(3) …. 15.5 s 118-12 …. 15.5 s 118-13 …. 15.5 s 118-60(1) …. 15.13 s 118-110 …. 15.6

s 118-130 …. 15.6, 15.22 s 118-190 …. 15.8 s 118-195 …. 15.6, 15.22 s 118-195(1) …. 15.6 s 118-195(1)(b) …. 15.6 s 118-200 …. 15.7 s 118-205 …. 15.7 s 121-20 …. 2.95 s 121-20(1) …. 15.16 s 121-25 …. 15.16 s 121-25(2) …. 15.16 s 128-10 …. 15.11, 15.14, 28.5 s 128-15 …. 15.15, 15.31 s 128-15(2) …. 15.11 s 128-15(3) …. 15.11 s 128-20(1) …. 15.12 s 128-20(1)(c) …. 15.21, 29.11 s 128-20(2) …. 15.18, 15.19 s 128-50 …. 15.15 s 128-50(2) …. 15.15 s 128-50(3) …. 15.15 s 128-50(4) …. 15.15 s 302-60 …. 17.8 s 302-65 …. 17.8 s 302-70 …. 17.8 s 302-145 …. 17.8 s 302-195 …. 17.8, 25.34 s 302-200 …. 17.8 s 307-5 …. 25.34

s 960-20(1) …. 15.2 s 995-1 …. 15.5, 15.14 Income Tax (Transitional Provisions) Act 1997 s 102-15 …. 15.2 Insurance Contracts Act 1984 s 48A …. 17.2 s 48A(3) …. 17.2 Jurisdiction of Courts (Cross Vesting) Act 1987 …. 14.12 Life Insurance Act 1995 s 204 …. 17.3 s 205 …. 17.3 Pooled Development Funds Act 1992 …. 15.5 s 3 …. 15.5 Social Security Act 1991 Pt 3.18 Div 8 s 1208E …. 25.8 Pt 3.18A …. 25.17 s 8(1) …. 2.27 s 8(11) …. 2.27 s 1207V …. 25.8 s 1209L …. 25.17 s 1209Y …. 25.8 Statutory Declarations Act 1959 …. 14.32 Superannuation Act 1922 s 143 …. 17.5 Superannuation Industry (Supervision) Act 1993 …. 17.5 s 59(1A) …. 17.7 s 17A(3)(b)(ii) …. 5.8 Superannuation Industry (Supervision) Regulations 1994 …. 17.5

reg 6.17A …. 17.7 reg 6.17AA …. 17.7 Trade Practices Act 1974 s 52 …. 15.29 Trustee Act 1925 s 14C(1) …. 25.34 Veterans’ Entitlements Act 1986 Pt 3B Div 11B …. 25.17 Pt 3B Div 11B Subdiv C s 52ZZZWK …. 25.8 s 52ZZZW …. 25.17 Australian Capital Territory Administration Act 1903 s 7 …. 10.4 Administration and Probate Act 1929 s 10B …. 10.4 s 41(1) …. 27.1 s 41A(1) …. 27.1 s 41C …. 27.1 s 41D …. 26.23 s 44(1) …. 27.36 s 49A …. 27.36 s 49P …. 6.2 s 49Q …. 6.2 s 55A …. 19.12 s 70 …. 11.1 Sch 4 Pt 1 …. 27.1 Administration and Probate Ordinance 1929 …. 23.1 Adoption Act 1993

s 43(1)(a) …. 7.2 s 43(1)(b) …. 7.2 s 43(1)(c) …. 7.2 Cemeteries and Crematoria Act 2003 s 20 …. 5.2 Cemeteries and Crematoria Regulation reg 8(1)(c) …. 5.2 Civil Law (Property) Act 2006 …. 26.6 Pt 2.4 …. 26.2, 26.6 s 210 …. 27.8 s 213 …. 6.2 s 500 …. 20.7, 21.1, 23.1 Conveyancing Act 1919 s 145 …. 20.7 s 145(1) …. 20.7 Court Procedure Rules 2006 r 3030 …. 31.32 r 3031 …. 31.33 r 3111 …. 1.17 r 3115(1)(c) …. 1.17 Family Provision Act 1969 s 7 …. 14.1, 14.2 s 8 …. 14.1 s 8(3) …. 14.22 s 22 …. 14.25 Interpretation Act 1987 s 21 …. 20.15, 20.16 Limitation Act 1985 s 11 …. 16.2

s 32 …. 16.2 s 43 …. 16.2 Medical Treatment (Health Directions) Act 2006 s 7 …. 5.7 Oaths, Affidavits and Declarations Act 2010 s 19 …. 14.32 Parentage Act 2004 …. 7.3 s 29 …. 7.3 s 38 …. 7.5 Perpetuities and Accumulations Act 1985 …. 25.15 s 19 …. 25.12 Powers of Attorney Act 2006 …. 5.6, 5.7 s 21(3) …. 5.5, 5.7 s 34 …. 5.8 s 92 …. 5.5, 5.7 s 96 …. 5.6 Statutory Declarations Act 1959 …. 14.32 Succession Act 2006 s 8 …. 2016 s 101 …. 20.13 Testamentary Guardianship Act 1984 s 8 …. 7.12, 7.18 s 10 …. 7.16 s 11 …. 7.13 s 11(4) …. 7.16 Transplantation and Anatomy Act 1978 …. 5.4 s 27 …. 5.4 s 28 …. 5.4

s 37 …. 5.4 s 38 …. 5.4 Trustee Act 1925 s 6 …. 10.6 s 8 …. 10.6 s 14B(2)(c) …. 29.2 s 14C(1) …. 25.34 s 26 …. 12.1, 26.2, 29.3, 29.12 s 27B …. 29.3 s 43 …. 29.4 s 44 …. 29.4 s 45 …. 24.13 s 46 …. 29.11 s 46(2) …. 24.8 s 53 …. 11.10 s 63 …. 12.3 s 81 …. 12.3, 26.2, 29.8 s 83(1) …. 29.8 Trustee Companies Act 1947 s 33 …. 13.1 Wills Act 1968 Pt 2A …. 3.5, 31.41 Pt 3B …. 3.2 s 8 …. 31.18 s 8A …. 31.18, 31.42 s 9 …. 31.1 s 9(1)(d) …. 31.1 s 11A …. 31.4, 31.27 s 12 …. 31.27

s 12A(2) …. 9.2, 27.16, 27.26 s 14A …. 2.66 s 15 …. 11.15, 31.29 s 16 …. 31.26 ss 16A–16I …. 1.15 s 20 …. 2.88, 8.1, 8.5, 8.6 s 20A …. 2.88, 8.6 s 25 …. 27.23 s 30A …. 6.7 s 31 …. 27.15, 27.20 s 31(1) …. 27.20 s 31A …. 7.5 s 31C …. 6.4, 27.18, 27.19 Wills Act 1969 s 16E(b) …. 1.15 New South Wales Adoption Act 2000 s 95(2)(a)–(c) …. 7.2 s 95(2)(d) …. 7.2 s 95(3) …. 7.2 Anatomy Act 1977 s 8 …. 5.4 s 8A …. 5.4 Assisted Reproductive Technology Act 2007 s 23 …. 5.4 Charitable Trusts Act 1993 s 10 …. 28.15 s 23 …. 28.7, 28.15

Conveyancing Act 1919 …. 27.8 s 26 …. 27.8 s 35 …. 6.2, 6.3 s 66D …. 29.3 s 145 …. 21.1, 23.1, 23.3 s 145(1) …. 23.1 s 145(2)(a) …. 23.1 Conveyancing (Amendment) Act 1930 …. 23.1 Conveyancing and Law of Property Act 1898 …. 26.6 Pt 4 …. 26.2, 26.6 s 109 …. 23.1 Evidence Act 1898 s 14B …. 14.29 s 14B(3) …. 14.29 Evidence Act 1995 s 62 …. 14.29 s 63 …. 14.29 Family Provision Act 1982 …. 14.16, 14.24 ss 21–29 …. 14.5 Guardianship Act 1987 Pt 2 …. 5.7 s 6C …. 5.6 Guardianship of Infants Act 1916 s 13 …. 7.12 s 14 …. 7.12 s 14(3) …. 7.16 s 14(4) …. 7.16 s 19 …. 7.13 Guardianship Regulation 2010

Sch 1 …. 5.6 Human Tissue Act 1983 s 23 …. 5.4 s 24 …. 5.4 Interpretation Act 1987 s 18A …. 31.9 s 21 …. 31.9 s 21(1) …. 31.9 Jurisdiction of Courts (Foreign Land) Act 1989 …. 14.12 Legal Profession Act 2004 …. 11.14 Legal Profession Reform Act 1995 s 57B …. 11.14 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 …. 11.14 r 12.1 …. 11.14 r 12.4.2 …. 11.14 Limitation Act 1969 s 14 …. 16.2 s 54 …. 16.2 s 63 …. 16.2 Oaths Act 1900 …. 14.32 s 14 …. 14.32 Perpetuities Act 1984 …. 14.21, 25.15 s 18 …. 25.12 Powers of Attorney Act 2003 Div 2 …. 5.7 s 12 …. 5.8 s 19 …. 5.5 s 22 …. 22.2, 22.3

Probate and Administration Act 1898 s 41 …. 10.4 s 46(1) …. 27.1 s 46A(1) …. 27.1 s 46C(2) …. 27.1 s 46D …. 26.23 s 84A …. 19.12 s 84A(3) …. 19.12 s 86 …. 11.1 s 86A …. 11.1 s 150 …. 1.17 Sch 3 Pt II …. 27.1 Public Health Regulation 2012 reg 77 …. 5.2 Revised Professional Conduct and Practice Rules 1995 r 11 …. 11.14 Status of Children Act 1996 …. 7.5, 7.8 s 6 …. 7.8 s 6(2) …. 7.8 s 6(3) …. 7.8 s 6(3)(a) …. 7.8 s 6(3)(b) …. 7.8 Succession Act 2006 …. 31.9 Ch 3 …. 14.1, 14.3, 14.16 Ch 4 Pt 4.3 …. 26.20 Pt 2.4 …. 3.5, 31.41 Pt 2.4A …. 3.2 Pt 3.3 …. 14.5, 33.9

s 3 …. 31.9 s 3(2) …. 7.11 s 5 …. 31.19 s 5(1) …. 31.19 s 5(2) …. 31.19 s 5(2)(a) …. 31.19 s 5(2)(b) …. 31.19 s 5(2)(c) …. 31.19 s 6 …. 31.1 s 7 …. 31.1 s 8 …. 31.4, 31.8, 31.10, 31.11, 31.12, 31.14, 31.27 s 8(1) …. 31.8, 31.9 s 8(2) …. 31.8 s 10 …. 11.15, 31.29 s 10(3)(c) …. 31.29 s 10(4)(b) …. 31.29 s 12 …. 2.88, 8.1 s 13 …. 2.88, 8.6 s 14 …. 31.27 s 16 …. 31.19 s 18 …. 1.15 ss 18–26 …. 1.15 s 18(5) …. 31.42 s 22(b) …. 1.15 s 23 …. 31.42 s 27 …. 27.33 s 28 …. 27.33 s 31(1) …. 27.23 s 34 …. 6.7

s 35 …. 6.4, 27.18, 27.19 s 41 …. 27.15, 27.20 s 41(1)(a) …. 27.20 s 42(2) …. 27.16, 27.24 s 43 …. 28.8 s 44 …. 2.66 s 48(1)(b) …. 31.41 s 54 …. 1.17 s 54(3) …. 1.17 s 57 …. 14.1, 14.2 s 57(b) …. 14.2 s 59 …. 14.1, 14.22 s 60 …. 14.16, 14.22 s 60(2) …. 14.4, 28.6 s 60(2)(j) …. 14.24 s 64 …. 14.12 s 75 …. 14.16 s 76 …. 14.16 s 76(2)(b) …. 14.11, 14.16 s 80 …. 14.16 s 84 …. 14.16 s 95 …. 9.17, 14.20 s 95(1) …. 14.20 s 95(3) …. 14.20 s 96 …. 14.20 s 100 …. 14.24 s 100(8) …. 14.24 s 101 …. 26.11, 27.36

s 107 …. 6.4 ss 111–113 …. 27.36 s 127(3) …. 27.27 s 127(4) …. 27.27 Succession Act 2008 Pt 3.3 …. 25.34 Succession Amendment (Intestacy) Act 2009 …. 6.4 Supreme Court Rules 1970 Pt 78 r 26 …. 31.32 Pt 78 r 27 …. 31.33 Surrogacy Act 2010 …. 7.3 s 39 …. 7.3 s 40 …. 7.3 Trustee Act 1925 s 6 …. 10.6 s 8 …. 10.6 s 14 …. 29.2 s 14B(2)(c) …. 29.2 s 14DA …. 29.8 s 26 …. 26.2, 29.3, 29.12 s 27 …. 29.3 s 27B …. 29.3 s 27C …. 29.3 s 28 …. 29.3 s 31 …. 29.3 s 36 …. 29.3 s 41 …. 26.5 s 43 …. 29.4 s 44 …. 29.4

s 45 …. 24.13, 24.14 s 46 …. 29.11 s 46(8A) …. 24.8 s 53 …. 11.10 s 63 …. 12.3, 15.31 s 81 …. 12.3, 26.2 Trustee and Guardian Act 2009 s 83 …. 22.2 Trustee Companies Act 1964 s 33 …. 13.1 Wills, Probate and Administration Act 1898 …. 31.6 s 13 …. 31.29 s 18A …. 31.8, 31.9, 31.10, 31.12, 31.14 s 29A …. 27.33 Wills, Probate and Administration (Amendment) Act 1989 s 3 …. 31.26 Sch 1(1) …. 31.26 Sch 1(4) …. 31.26 Northern Territory Administration and Probate Act 1969 …. 23.1 s 19 …. 10.4 s 54(1) …. 27.1 s 55(1) …. 27.1 s 57(1) …. 27.1 s 58 …. 26.23 s 61 …. 27.36 s 64 …. 6.2, 6.3 s 67 …. 27.36

s 80 …. 29.3 s 81 …. 29.11 s 83 …. 29.3 s 102 …. 11.1 s 147 …. 1.17 Sch 4 Pt 1 …. 27.1 Administration and Probate Ordinance 1969 s 3(2) …. 23.1 Adoption of Children Act 1994 s 15(4) …. 7.2 s 45(1)(a) …. 7.2 s 45(1)(b) …. 7.2 s 45(1)(c) …. 7.2 Advance Personal Planning Act 2013 …. 5.7 s 8 …. 5.6 Cemeteries Act s 18 …. 5.2 Companies (Trustee and Personal Representatives) Act …. 13.1 De Facto Relationships Act s 3A …. 14.2 Family Provision Act 1970 s 7 …. 14.1, 14.2 s 8 …. 14.1 s 8(3) …. 14.22 s 22 …. 14.25 Guardianship of Infants Act 1996 s 16 …. 7.12 s 16(3) …. 7.16 s 16(4) …. 7.16

s 18 …. 7.13 Law of Property Act s 56 …. 33.1 s 187 …. 25.15 s 202 …. 25.12, 25.15 s 216 …. 6.2, 6.3 s 216(1) …. 6.3 s 216(2) …. 6.3 s 216(2)(b) …. 6.3 s 216(2)(c) …. 6.3 s 216(2)(f) …. 6.3 s 216(2)(h) …. 6.3 s 216(3) …. 6.3 s 216(4) …. 6.3 s 217 …. 6.2, 6.3 s 218 …. 6.3 Limitation Act s 12 …. 16.2 s 41 …. 16.2 Oaths, Affidavits and Declarations Act 2010 s 19 …. 14.32 Powers of Attorney Act 1980 Pt 3 …. 5.7 s 13 …. 5.5 Rights of the Terminally Ill Act …. 5.7 Rules of Professional Conduct and Practice r 8 …. 11.14 r 9 …. 11.14

Status of Children Act …. 7.5 Statutory Declarations Act 1959 …. 14.32 Supreme Court Rules 1987 r 78.04 …. 19.12 r 88.14 …. 31.32 r 88.15 …. 31.33 Transplantation and Anatomy Act s 18 …. 5.4 s 19A …. 5.4 s 19B …. 5.4 Trustee Act s 7(1)(c) …. 29.2 s 10A …. 29.8 s 11 …. 10.6 s 12 …. 10.6 s 14 …. 12.1, 29.3, 29.12 s 15 …. 29.3 s 24 …. 29.4 s 24A …. 29.4 s 50A …. 12.3, 26.2, 26.6, 26.14 s 78 …. 11.1 Wills Act 2000 …. 31.26 Pt 5 …. 3.5, 31.41 Pt 5A …. 3.2 s 7 …. 31.20 s 8 …. 31.1 s 9 …. 31.1 s 10 …. 31.4, 31.27 s 12 …. 11.15, 31.29

s 14 …. 2.88, 8.1 s 15 …. 2.88, 8.6 s 16 …. 31.27 s 18 …. 31.20 ss 19–26 …. 1.15 s 21(b) …. 1.15 s 30 …. 27.23 s 33 …. 6.7 s 34 …. 6.4, 27.18, 27.19 s 40 …. 6.3, 27.15, 27.20 s 40(2) …. 27.20 s 41(2) …. 27.16, 27.24 s 42 …. 28.8 s 43 …. 2.66 s 54 …. 1.17

Queensland Acts Interpretation Act 1954 s 32DA …. 14.2 Adoption Act 2009 s 204(3) …. 7.2 s 214(2) …. 7.2 s 214(3) …. 7.2 Burials Assistance Act 1965 s 3(3) …. 5.2 Consumer Credit Code …. 20.8 Evidence Act 1977 s 92 …. 14.29 Guardianship and Administration Act 2000

s 8 …. 5.6 s 12 …. 5.6 Limitation of Actions Act 1974 s 10 …. 16.2 s 24 …. 16.2 s 35 …. 16.2 Powers of Attorney Act 1998 …. 5.6 Ch 3 …. 5.6 Ch 5 …. 5.6 Pt 3 …. 5.7 s 11 …. 5.5 s 44 …. 5.5 s 107 …. 22.2 Sch 1 …. 5.6 Sch 2 …. 5.6 Property Law Act 1974 Pt XIV …. 25.15 s 35 …. 27.8 s 55 …. 33.1 s 222 …. 25.12 Relationships Act 2011 …. 2.88, 8.1 Status of Children Act 1978 …. 7.5 Succession Act 1981 Pt 2 Div 6 …. 3.5 Pt 2 Div 6A …. 3.2 Pt 5A …. 7.12 s 5AA …. 14.2 s 5A …. 7.11 s 6 …. 1.17

s 9 …. 31.21 s 10 …. 31.1 s 11 …. 31.29 s 11(3) …. 11.15, 31.29 s 11(4) …. 31.29 s 12 …. 31.37 s 12(3) …. 31.37 s 14 …. 2.88, 8.1 s 14A …. 2.88, 8.1 s 15 …. 2.88, 8.6 s 15A …. 2.88, 8.6 s 16 …. 31.26, 31.27 s 18 …. 31.4, 31.27 s 19 …. 31.21 ss 21–28 …. 1.15 s 24(d) …. 1.15 s 26 …. 31.42 s 33B …. 6.4, 27.18, 27.19 s 33G …. 27.23 s 33H …. 6.7 s 33N …. 27.15, 27.20 s 33N(1)(a) …. 27.20 s 33P …. 27.16, 27.24 s 33Q …. 28.8 s 33Q(4) …. 28.16 s 33R …. 2.66 ss 33T–33Y …. 31.41 s 33Z …. 1.17

s 34A …. 27.36 s 35(2) …. 6.4 s 40 …. 14.1 s 40A …. 2.24, 14.1 s 41 …. 14.1 s 41(2)(c) …. 14.22 s 48 …. 10.4 s 52 …. 1.17 s 52(1)(e) …. 19.12 s 56 …. 27.1 s 59 …. 27.1 s 61 …. 20.7, 21.1, 23.1, 23.4 s 61C …. 7.18 s 61D …. 7.16 s 61E …. 7.13 s 61F …. 7.16 s 63 …. 28.8, 28.12 s 65 …. 6.2 s 68 …. 11.1 s 76(1) …. 31.26 Sch 2 Pt 1 …. 27.36 Succession Amendment Act 2006 …. 31.26 Surrogacy Act 2010 …. 7.3 s 39 …. 7.3 s 40 …. 7.3 Transplantation and Anatomy Act 1979 s 22 …. 5.4 s 23 …. 5.4 s 31 …. 5.4

s 32 …. 5.4 Trustee Companies Act 1968 s 68 …. 13.1 Trusts Act 1973 Pt 2 …. 10.6 Pt 4 …. 26.2, 26.6 s 5 …. 26.2, 26.6 s 23(2)(c) …. 29.2 s 28 …. 29.8 s 32 …. 12.1, 29.3, 29.12 s 32(1)(c) …. 29.3 s 33 …. 29.3 s 33(1)(l) …. 29.11 s 33(1)(m) …. 24.8, 29.11 s 34 …. 29.3 s 35 …. 29.3 s 36 …. 29.3 s 37 …. 29.3 s 43 …. 28.1 s 54 …. 11.10 s 61 …. 29.4 s 62 …. 29.4 s 63 …. 29.4 s 64 …. 24.13 s 78 …. 26.23 s 78(7) …. 26.23 s 94 …. 12.3 s 95 …. 26.14

s 96 …. 12.3 s 101 …. 11.1 s 104 …. 28.7 Uniform Civil Procedure Rules 1999 r 604 …. 31.32 r 607 …. 31.33

South Australia Administration and Probate Act 1891 s 75 …. 23.1 Administration and Probate Act 1919 s 5 …. 10.4 s 25 …. 1.17 s 46(2) …. 27.1 s 52 …. 20.7, 21.1, 23.1 s 69 …. 12.3 s 70 …. 11.1 s 72B …. 27.36 s 72E …. 6.4 s 72H …. 27.36 s 120A(1) …. 19.12 Administration and Probate Regulations 2009 reg 3 …. 19.12 Adoption Act 1988 s 9(1) …. 7.2 s 9(2) …. 7.2 Advanced Care Directives Act 2013 Pt 3 …. 5.6 Aged and Infirm Persons Property Act 1940

s 7 …. 1.15 s 11 …. 1.15 s 29 …. 1.13, 1.15 s 29(1) …. 1.16 Assisted Reproductive Treatment Act 1988 s 9(c) …. 5.4 Burial and Cremation Act 2013 s 10(7) …. 5.2 Consent to Medical Treatment and Palliative Care Act 1995 …. 5.7 Evidence Act 1929 s 34C …. 14.29 Family Relationships Act 1975 …. 7.3 Pt 3 …. 14.2 s 6 …. 7.5 s 10HB(13) …. 7.3 Guardianship and Administration Act 1993 s 56(1) …. 1.13, 1.16 Guardianship of Infants Act 1940 s 12 …. 7.16 s 13 …. 7.12, 7.16 s 15 …. 7.13 Inheritance (Family Provision) Act 1972 s 4 …. 14.2 s 6 …. 14.1 s 6(ba) …. 14.2 s 7 …. 14.1 s 7(3) …. 14.22 Law of Property Act 1936 s 61 …. 25.12, 25.15

s 62 …. 25.15 s 62A …. 25.15 Law of Property (Perpetuities and Accumulations) Act 1996 …. 25.15 Limitation of Actions Act 1936 s 28 …. 16.2 s 35 …. 16.2 Oaths Act 1936 s 25 …. 14.32 Powers of Attorney and Agency Act 1984 …. 5.7 s 6 …. 5.5 s 11A …. 22.2 Sch 1 …. 5.5 Sch 2 …. 5.5 Settled Estates Act 1880 …. 26.2, 26.6 Supreme Court Probate Rules 2015 …. 31.33 r 18 …. 31.32, 31.33 r 19 …. 31.33 r 30(7) …. 31.33 Transplantation and Anatomy Act 1983 s 21 …. 5.4 s 22 …. 5.4 s 29 …. 5.4 s 30 …. 5.4 Trustee Act 1936 Pt 2 Div 1 …. 10.6 s 8(1)(c) …. 29.2 s 12 …. 29.8 s 20 …. 12.1, 29.3, 29.12

s 21 …. 29.3 s 23 …. 29.3 s 23A …. 29.3 s 24 …. 11.10 s 33 …. 6.7, 29.4 s 33A …. 29.4 s 35A(2) …. 24.8 s 49 …. 12.3 s 55 …. 26.2, 26.6 s 59B …. 12.3 s 59C …. 26.14 s 69A …. 28.7 s 91 …. 12.3 Trustee Companies Act 1988 …. 13.1 Trustee Companies Regulations 2004 …. 13.1 Wills Act 1936 Pt 3 …. 3.5, 31.41 Pt 3A …. 3.2 s 5 …. 31.22 s 6 …. 31.22 s 7 …. 1.15 s 7(3) …. 1.16 s 7(3)(b) …. 1.16 s 7(9) …. 31.42 s 8 …. 31.1 s 11 …. 31.26 s 12(2) …. 31.4, 31.5, 31.27 s 12(3) …. 31.4

s 12(4) …. 31.4 s 12(5) …. 31.4 s 17 …. 11.15, 31.29 s 20 …. 2.88, 8.1 s 20A …. 2.88, 8.6 s 24 …. 31.27 s 25AA …. 27.3 s 28 …. 27.23 s 36 …. 27.15, 27.20

Tasmania Administration and Probate Act 1935 …. 27.1 s 3(2) …. 7.11 s 14(1) …. 10.4 s 14(2) …. 10.3 s 32(1) …. 27.1 s 34(3) …. 27.1 s 35 …. 20.7, 21.1, 23.1 s 40 …. 29.11 s 64 …. 11.1 s 67 …. 1.17 Sch 2 Pt II …. 27.1 Sch 3(3) …. 1.17 Adoption Act 1988 s 20(8) …. 7.2 s 50(1)(a) …. 7.2 s 50(1)(b) …. 7.2 s 50(1)(c) …. 7.2 Age of Majority Act 1973 …. 31.23

Anatomical Examinations Act 2006 …. 5.4 s 6 …. 5.4 s 7 …. 5.4 Burial and Cremation (Cremation) Regulations 2002 Pt 2 …. 5.2 Conveyancing and Law of Property Act 1884 s 47 …. 29.4 Guardianship and Administration Act 1995 Pt 6 …. 5.7 s 32 …. 5.6 s 43(2) …. 5.7 Sch 3 …. 5.6 Guardianship and Custody of Infants Act 1934 s 4 …. 7.12, 7.16 s 5 …. 7.12, 7.16 s 6 …. 7.12, 7.16 s 8 …. 7.13 Human Tissue Act 1985 s 23 …. 5.4 s 24 …. 5.4 Limitation Act 1974 s 4 …. 16.2 s 21 …. 16.2 s 29 …. 16.2 Oaths Act 2001 Sch 1 …. 14.3 Form 1 …. 14.3 Perpetuities and Accumulations Act 1992 …. 25.15 s 22 …. 25.12

Powers of Attorney Act 2000 Pt 4 …. 5.7 s 30 …. 5.5 Sch 1 …. 5.5 Presumption of Survivorship Act 1921 s 2 …. 6.2 Probate Rules 1936 r 7 …. 31.32 r 12 …. 31.33 Registered Relationships Act 2003 …. 2.88 Pt 2 …. 8.1, 8.6 Relationships Act 2003 …. 14.2 Rules of Practice 1994 …. 11.14 Settled Land Act 1884 …. 26.6 Pt III …. 26.2 Pt V …. 26.2 s 28 …. 26.2 Settled Land Act 1911 …. 26.6 s 8 …. 26.2 Status of Children Act 1974 …. 7.5 Supreme Court Rules 2000 Pt 36 r 5A(1) …. 19.12 Surrogacy Act 2012 …. 7.3 s 26 …. 7.3 Testator’s Family Maintenance Act 1912 …. 14.5 s 2(b) …. 14.2 s 3 …. 14.1 s 3A …. 14.1

s 3A(a) …. 14.2 s 3A(e) …. 14.2 s 8(1) …. 14.22 s 8A …. 14.26 Trustee Act 1898 s 9(1)(b) …. 29.2 s 12(1)(a) …. 29.8 s 13 …. 10.6 s 14 …. 10.6 s 16 …. 12.1, 26.2, 29.3, 29.12 s 17 …. 29.3 s 18 …. 29.3 s 20 …. 11.10 s 29 …. 29.4 s 30 …. 24.13 s 47 …. 12.3 s 58 …. 11.1 Trustee Companies Act 1953 s 18J …. 13.1 Variation of Trusts Act 1994 …. 26.14 s 4(2) …. 28.7 s 4(3) …. 28.7 Wills Act 2008 …. 31.26 Pt 5 …. 3.5, 31.41 Pt 5A …. 3.2 s 4 …. 27.36 s 7 …. 31.23 s 8 …. 31.1 s 9 …. 31.1, 31.4

s 10 …. 31.4, 31.5, 31.27 s 12 …. 11.15, 31.29 ss 12–14 …. 27.36 s 13 …. 11.15, 31.29 s 16 …. 2.88, 8.1 s 17 …. 2.88, 8.6 s 18 …. 31.27 s 20 …. 31.23 ss 21–28 …. 1.15 s 24(e) …. 1.15 s 27 …. 31.42 ss 29–41 …. 1.15 s 30 …. 31.23 s 31 …. 27.16 s 37 …. 31.23 ss 39–41 …. 1.15 s 44 …. 31.29 s 45 …. 27.23, 31.29 s 46 …. 31.29 s 48 …. 6.7 s 49 …. 6.4 s 55 …. 27.15, 27.18, 27.19, 27.20 s 56(2) …. 27.16, 27.24 s 57 …. 28.8 s 58 …. 2.66 s 63 …. 1.17

Victoria Administration and Probate Act 1958

s 5 …. 27.36 s 5(2) …. 7.11 s 6 …. 10.4 s 15 …. 1.17 s 37 …. 27.1 s 39A …. 27.1 s 40 …. 20.7, 21.1, 23.1 s 51 …. 27.36 s 65 …. 11.1 s 91 …. 14.1, 14.2 s 91(1) …. 14.2 s 91(4)(o) …. 14.22 s 94(c) …. 14.27 Adoption Act 1984 s 11(7) …. 7.2 s 53(1)(a) …. 7.2 s 53(1)(b) …. 7.2 s 53(1)(c) …. 7.2 s 75(1)(b)(i) …. 7.2 s 75(1)(d) …. 7.2 Assisted Reproductive Treatment Act 2008 Pt 5 …. 5.4 Cemeteries and Crematoria Regulations 2005 Sch 3 …. 5.2 Charities Act 1978 s 7M …. 28.7 Evidence (Miscellaneous Provisions) Act 1968 Pt IV Div IV …. 14.32 Human Tissue Act 1982

s 26 …. 5.4 s 27 …. 5.4 s 32 …. 5.4 Instruments Act 1958 Sch 12 …. 5.5 Interpretation of Legislation Act 1984 s 38 …. 31.9 Limitation of Actions Act 1958 s 5 …. 16.2 s 18 …. 16.2 s 24 …. 16.2 Marriage Act 1958 s 135 …. 7.12, 7.16 s 138 …. 7.16 s 139 …. 7.13 Medical Treatment Act 1988 …. 5.7 s 5A …. 5.6 Sch 2 …. 5.6 Perpetuities and Accumulations Act 1968 …. 25.15 s 19 …. 25.12 Powers of Attorney Act 2014 s 33 …. 5.5 Property Law Act 1958 s 184 …. 6.2 Settled Land Act 1958 …. 26.6 s 38 …. 26.2 Status of Children Act 1974 …. 7.3, 7.5 s 26 …. 7.3

Supreme Court (Administration and Probate) Rules 2004 r 2.06 …. 31.32, 31.33 Supreme Court (General Civil Procedure) Rules 2005 r 78.05 …. 19.12 Supreme Court (General Civil Procedure) Rules 2015 r 54.02 …. 12.3 Trustee Act 1958 Pt 3 …. 10.6 s 7(2)(c) …. 29.2 s 11 …. 29.8 s 12E …. 29.8 s 13 …. 12.1, 26.2, 29.3, 29.12 s 13(5) …. 29.3 s 14 …. 29.3 s 15 …. 29.3 s 16 …. 29.3 s 17 …. 29.3 s 18 …. 29.3 s 20 …. 29.3 s 28 …. 11.10 s 31 …. 29.11 s 31(9) …. 24.8 s 37 …. 29.4 s 38 …. 29.4 s 39 …. 24.13 s 63 …. 12.3 s 63A …. 26.14 s 74 …. 26.23 s 77 …. 11.1

Trustee Companies Act 1984 s 54 …. 13.1 Wills Act 1997 …. 31.26 Pt 2 Div 6 …. 3.5 Pt 2 Div 7 …. 3.2 s 5 …. 31.24 s 6 …. 31.24 s 7 …. 31.1 s 8 …. 31.1 s 9 …. 31.4, 31.12, 31.15 s 9(1) …. 31.9 s 9(1)(b) …. 31.27 s 9(3) …. 31.9 s 11 …. 11.15, 31.29 s 13 …. 2.88, 8.1 s 14 …. 2.88, 8.6 s 15 …. 31.27 s 16A …. 31.41 s 17 …. 31.41 s 18 …. 31.41 s 19 …. 31.41 s 20 …. 31.24 ss 21–30 …. 1.15 s 21B(b) …. 1.15 s 25 …. 31.42 s 26(b) …. 1.16 s 35 …. 27.23 s 38 …. 6.7

s 39 …. 27.18, 27.19 s 45 …. 27.15, 27.20 s 45(2) …. 27.20 s 46(3) …. 27.16, 27.24 s 47 …. 28.8 s 48 …. 2.66 s 49 …. 6.4 s 50 …. 1.17

Western Australia Administration Act 1903 s 10(1) …. 27.1 s 13(1a) …. 27.8 s 14(1) …. 27.36 s 14(2) …. 27.36 s 47A …. 7.5 s 143A …. 19.12 Adoption Act 1994 s 75(1)(a) …. 7.2 s 75(1)(d) …. 7.2 s 75(2) …. 7.2 Anatomy Act 1930 …. 5.4 s 8 …. 5.4 s 9 …. 5.4 s 10 …. 5.4 Cremation Act 1929 s 8A(b) …. 5.2 Cremation Regulations 1954 App A Form 6 …. 5.2

Family Court Act 1997 s 7(1) …. 7.14 s 68 …. 7.14 s 71 …. 7.12, 7.16, 7.18 s 71(3) …. 7.14 s 71(5) …. 7.14 Family Provision Act 1972 s 4 …. 7.5 s 6 …. 14.1 s 6(3) …. 14.22 s 7(1) …. 7.11, 14.1, 14.2 s 21A …. 14.28 Guardianship and Administration Act 1990 Pt 9 …. 5.7 s 104 …. 5.5, 5.6 Sch 3 …. 5.5, 5.6 Human Reproductive Technology Act 1991 s 26(1)(b) …. 5.4 Human Tissue and Transplant Act 1982 s 22 …. 5.4 Inheritance (Family and Dependants) Provision Act 2011 …. 14.28 Interpretation Act 1984 s 13A …. 14.2 Legal Profession Conduct Rules 2010 r 15 …. 11.14 Limitation Act 2005 s 13 …. 16.2 s 47 …. 16.2 s 75 …. 16.2

Non-Contentious Probate Rules 1967 r 15 …. 31.32 r 16 …. 31.33 Oaths, Affidavits and Statutory Declarations Act 2005 s 12 …. 14.32 Sch 1 …. 14.32 Property Law Act 1969 Pt XI …. 25.15 s 11 …. 33.1 s 31A …. 7.5 s 99 …. 25.12 s 113 …. 25.12 s 120(a) …. 6.2 s 120(i) …. 6.2 Rules of the Supreme Court 1971 O 73 r 20 …. 1.17 Surrogacy Act 2008 …. 7.3 s 26 …. 7.3 Trustee Companies Act 1987 …. 13.1 Trustees Act 1962 Pt IV …. 26.2, 26.6 s 7 …. 10.6 s 19(1)(c) …. 29.2 s 24 …. 29.8 s 27 …. 12.1, 29.3, 29.12 s 27(1)(c) …. 29.3 s 28 …. 29.3 s 30(1)(k) …. 29.11

s 30(1)(l) …. 24.8, 29.11 s 53 …. 11.10 s 58 …. 6.7, 29.4 s 59 …. 29.4 s 61 …. 24.13 s 66 …. 19.16 s 89 …. 12.3 s 90 …. 26.14 s 92 …. 12.3 s 98 …. 11.1 s 102 …. 28.7 s 104 …. 26.23 Wills Act 1970 …. 31.25 Pt IV …. 11.15, 31.29 Pt VII …. 3.5, 31.41 Pt IX …. 7.5 Pt X …. 31.4 Pt XA …. 3.2 Pt XI …. 31.25 s 7 …. 31.25 s 8 …. 31.1 s 10 …. 31.27 s 14 …. 2.88, 8.1, 8.5 s 14A …. 2.88, 8.6 s 14A(2) …. 8.6 s 17 …. 31.26 s 26(1)(b) …. 27.23 s 26(1)(g) …. 27.16, 27.24 s 27 …. 27.15, 27.20

s 27(2) …. 27.20 s 28 …. 20.7, 21.1, 23.1 s 32 …. 31.27 s 34 …. 31.9 ss 39–48 …. 1.15 s 40(2) …. 31.25 s 40(4) …. 31.42 s 42(1)(b) …. 1.15 Wills Amendment Act 2007 s 11 …. 11.15, 31.29

International Convention on the Conflicts of Law Relating to the Form of Testamentary Dispositions …. 31.41 Convention Providing a Uniform Law on the Form of an International Will 1973 …. 3.2 Annex Art 1 …. 3.2 Annex Arts 2–5 …. 3.2 Annex Art 6 …. 3.2 Annex Art 7 …. 3.2 Annex Art 13 …. 3.2 Hague Convention …. 3.5

New Zealand Law Reform (Testamentary Promises) Act 1949 …. 33.10

United Kingdom Locke King’s Act 1854 …. 20.7, 21.1, 23.1, 23.3, 23.4 Real Estate Charges Act 30 & 31 Vict c 69 (1867) …. 23.1 Real Estate Charges Act 40 and 41 Vict c 34 (1877) …. 23.1

TABLE OF CONTENTS Publisher’s Note About the Authors Preface Acknowledgments Table of Cases Table of Statutes

1

General Considerations — Estate Planning; Validity of Will, Requirements for; Capacity; Concealment of Will; Order to Produce Will Introductory Notes Suggested method of using these precedents Estate planning Estate planning linked to tax planning and will drafting Estate plan should be flexible Drafting your own will, or will for family member Interview client personally: do not draft for client you have not seen Requirements for validity of will Fraud, undue influence, and lack of knowledge and approval Onus of proof; shifting evidentiary onus of proof; importance of solicitor’s evidence in contested probate proceedings

Pressure on testator; interviewing client in presence of another person Testamentary capacity; should solicitor draft will where solicitor doubts capacity? Age and testamentary capacity Testamentary capacity: soundness of mind, memory and understanding Solicitor’s duties in relation to capacity Wills for persons without testamentary capacity South Australia’s provisions are restrictive Concealed will; order to produce will; right to inspect will

2

Drafting a Will Using These Precedents; Taking Instructions and Structuring a Will Introductory Notes General comments; codicils; urgency; death before will executed Learning will drafting; general considerations — understanding testator’s affairs Urgency; liability in negligence for delay Death or incapacity of testator before will executed; stopgap or interim will; could instructions for will be probated under dispensing provisions? Solutions Estate Information Manual Interviewing client for will Keep adequate file notes Interviews needed Purposes of interview Is there an existing will?

What is testator’s domicile? Might testator marry or divorce? Is there a power to appoint a controller, appointor or custodian of family trust; to appoint beneficiaries under a will? Is there a business succession agreement? Is there a contract to leave property by will? What are the testator’s assets and liabilities? Kinds of assets List of assets and liabilities Do assets really belong to testator? Real property as an asset of testator Superannuation, proceeds of life insurance policies and friendly society investments as assets of testator Other assets of testator Foreign assets of testator Debts owed to testator; liabilities of testator Debts owed to testator Debts owed by testator Who are going to be beneficiaries? Will people be disappointed by the will? Are there any moral obligations to particular persons? Family members; relationships Aboriginal testators Blended (or ‘melded’) families Gifts to persons who receive or might receive social security/Centrelink benefits Minor children as beneficiaries Gifts to brothers and sisters of the testators in corresponding wills of spouses Beneficiaries with disabilities

Doctors or health care givers as beneficiaries Bankrupts as beneficiaries Who are going to be executors and trustees? Drafting the will: preliminary considerations Multiple original wills Codicil or whole new will? Duplicating the law in the will Mixing precedents Joint tenancy and tenancy in common Tax implications of provisions in the will Superannuation: importance of in drafting Drafting the will: process of drafting and structure of a will Is the draftsperson working directly on a computer, or taking instructions for a secretary to prepare the document? Framework (structure) of will: summary of how to use precedents Structure of will and order of precedents Selection of ‘most used precedents’: Appendix A Outline (or ‘plan’) of will being drafted Technical process of drafting a will using this book Correct names and addresses of testator, beneficiaries, executors, guardians, etc Gift clauses all in one sentence beginning ‘My executors hold my estate on trust:’ Schedules Placement of schedules Drafting the will: a few particular words and their use Words to beware of ‘Shall’ and ‘must’

Mandatory or precatory words Drafting the will: types of provisions and gifts 30-day survivorship requirement: death of beneficiary not having survived testator by 30 days Executors and trustees, choice of; machinery for administering the will and its trusts Gifts of money (pecuniary legacies): beware double gift where there is 30-day survivorship requirement Specific gifts: problems with gifts of specific items ‘Residue’: gifts of Gifts to charities and unincorporated associations Life interests and rights of occupation Trusts Testamentary discretionary family trust Conditional gifts Failure of gifts; drafting to protect against or prevent failure of gifts Excluding particular persons from inheriting Delegation of testamentary power Mutual wills; contracts to make wills Incorporation of documents in the will Preparing will for execution Pagination; attestation not on separate page Corrections and alterations Execution: checking the will, counsel’s advice; financial advice Negligence: checking the will — textual errors; incorrect advice Is there a duty to check whether the testator’s

statements concerning the testator’s property are correct? Difficult wills; counsel’s opinion or financial advice Execution: formalities Witness–beneficiary Formalities for the execution of a will or codicil Will executed unsupervised After execution Copies of the will Envelopes Binding the will Attachments to wills Safekeeping of the will Solicitor retaining the will Revoked wills — retention Advice and suggestions to clients Matters to raise with clients Suggestions to clients: to be given to all clients Regular review of will: need for Right to revoke Revocation by marriage; effect of divorce on a will Warn clients against creating informal documents which may be testamentary in nature Enduring powers of attorney Miscellaneous concerns: charging for wills; dispute mediation; deed of family arrangement; late changes to law; discovery of errors Charging for wills Disputes — mediation of testamentary contests

Deed of family arrangement; disclaimer or renunciation of benefit Change in the law after will made Late discovery of errors Form 2.01 Example of instructions for will: illustrates the structure of a simple will: will of husband where corresponding wills are being prepared for a husband and wife with children, where neither has a child from a previous relationship Form 2.02 Example will drawn according to the instructions in Form 2.01 Form 2.03 Framework of a will Form 2.04 Estate Information Manual Form 2.05 Instructions for signing your will Form 2.06 Suggestions to clients Form 2.07 Disclaimer of benefits under will Form 2.08 Disclaimer of benefits under intestacy Form 2.09 Provision in will exercising power to appoint controller, appointor or custodian of family trust

3

Commencement and Testimonium; Wills for Assets in Foreign Countries Introductory Notes

Commencement/Testimonium International wills Wills for testators with property in Australia and elsewhere Drafting foreign will Formal validity and substantive effect of foreign will Executors and foreign wills Form 3.01 Heading, commencement and testimonium Form 3.02 International will Form 3.03 Certificate by Authorised Person Form 3.04A Heading, commencement and testimonium clauses for wills for Australia and a foreign country Australian will Form 3.04B [Name foreign country] will

4

Revocation Clauses Introductory Notes Need for revocation clause; wording the clause General revocation clause Limited revocation clause for use in a codicil Revocation where testator has wills in several jurisdictions Form 4.01 Comprehensive (general) revocation clause Form 4.02 Limited revocation clause Form 4.03

Revocation clause where testator has wills in several jurisdictions

5

Directions as to Disposal and Use of the Body; Enduring Power of Attorney; Appointment of Enduring Guardian; Directions as to Undue Prolongation of Life Introductory Notes Executor has the right, and is subject to the duty, to dispose of the body Disposal of body directions: where they should be kept; wording Right of burial Use of body for anatomical, transplantation, therapeutic, medical or scientific purposes or for assisted reproductive treatment Enduring powers of attorney; directions as to medical treatment; living wills Enduring powers of attorney Enduring guardians Advance health care directives Powers, limitations and dangers Forms and precedents Form 5.01 Inexpensive disposal of body Form 5.02 General disposal of body clause Form 5.03 Cremation Form 5.04

Burial Form 5.05 Body to be available for anatomical, therapeutic, medical or scientific purposes Form 5.06 Body to be used for research by particular institution Form 5.07 Body not available for any purpose

6

Deaths — Simultaneous or Near-Simultaneous; Presumption of Death; Order of Deaths Clauses; Intermediate Income Introductory Notes Lapse Provision for actual deaths Provision for presumed deaths — presumption of death 30-day survivorship period for beneficiaries: express inclusion or exclusion One general 30-day survivorship provision for the whole will rather than one for each gift Wording survivorship provisions; intermediate income Intermediate income Survivorship provisions in wills of couples where one testator excludes the 30-day survivorship requirement Form 6.01 Presumption of survivorship Form 6.02 Standard clause, recommended for use in all wills except where Form 9.01 is used, requiring that beneficiaries survive the testator by 30 days

Form 6.03 Exclusion of requirement that beneficiaries survive the testator by 30 days

7

Children; Adopted, Surrogate Children; Guardianship

and

Ex-Nuptial

Introductory Notes Definition of ‘children’: include in every will Adopted persons Surrogate children Foster or stepchildren Ex-nuptial children: statutory provisions Ex-nuptial children: dangers in not excluding persons related through ex-nuptial relationships Ex-nuptial children: drafting a provision to exclude persons related through ex-nuptial relations New South Wales Jurisdictions other than New South Wales All jurisdictions: another alternative; ‘reputed’ relations Child conceived but not yet born: en ventre sa mère Guardian: testamentary guardian; state and territory legislation gives power to appoint Concept of guardianship and Family Law Act 1975 (Cth) Western Australia Advantages and disadvantages of appointing a guardian Is testamentary guardian to act with surviving parent or not? Appointing more than one testamentary guardian Power of guardians who are not parents to appoint testamentary guardians

Choice of executors where guardian is appointed Minor children: carers, financial provision for Form 7.01 Exclusion of adopted or surrogate children Form 7.02 Exclusion of foster or stepchildren Form 7.03 Exclusion of ex-nuptial children Form 7.04 Alternative form for exclusion of ex-nuptial children Form 7.05 Carer or guardian not to suffer financial hardship Form 7.06 Appointment of testamentary guardian Form 7.07 Appointment of testamentary guardian to act only if there is no surviving parent Form 7.08 Appointment of testamentary guardians to act only if there is no surviving parent Form 7.09 Appointment of guardian by a guardian who is not a parent

8

Will Made in Contemplation of Marriage; The Effect of Divorce Introductory Notes Revocation by marriage: legal principles Drafting contemplation of marriage provision Will not conditional on marriage

Domestic partners Will made in contemplation of marriage generally Effect of divorce Form 8.01 Contemplation of marriage expressed: will conditional on marriage Form 8.02 Contemplation of marriage expressed: will not conditional on marriage Form 8.03 Contemplation of marriage generally Form 8.04 Will not to be revoked on divorce or annulment Form 8.05 Will not to be revoked on termination of civil union or civil partnership Form 8.06 Will not to be revoked on revocation of deed of relationship Form 8.07 Will not to be revoked on termination of registered relationship

9

Provision for Spouse or Partner Introductory Notes Gift to surviving spouse or partner: structure of wills and family provision risk Providing for failure of gift for unforeseen or unexpected circumstances Schedules: useful for provision for spouse or partner in complex will Administrative (machinery) provisions

Placing administrative provisions in wills using schedules Placement of beneficial provisions in schedules; summing up placement of administrative and beneficial provisions Exclusion of 30-day survivorship requirement in wills using schedules, and legacies in wills of spouses or partners Will of other testator Wording and effect of gift to spouse or partner Protecting children where large gift, or gift of whole estate, to spouse or partner Blended (melded) family Blended family: giving whole estate to surviving spouse or partner Blended family: purposes testator will want to achieve Blended family: alternatives open to testator; take life insurance and superannuation into account Blended family: alternatives: leave whole estate to surviving partner Blended family: alternatives: create mutual wills Blended family: alternatives: create life estate Blended family: alternatives: create testamentary discretionary family trust Blended family: alternatives: create inter vivos discretionary family trust Blended family: alternatives: give major asset, for example, matrimonial home, to surviving present partner Blended family: alternatives: usual best solution is fair outright division on death of testator Blended family: aids to solving problem: increase available assets using superannuation Blended family: aids to solving the problem: increase the available assets using life insurance

Blended family: family provision claims by past members of family whom testator does not wish to benefit Appointments of executors and guardians are placed in schedules Wills of partners who may later marry Form 9.01 Schedules for spouse or partner

10

Appointment of Executors Introductory Notes Choice of suitable executors and trustees; appointment Appointment of sole executor Appointment of joint executors Numerous executors and trustees Same or different persons for executors and trustees? Choice of executors and trustees: trusts, life estates, minor beneficiaries, large estates; long-term administration Choice of executors where testamentary guardian GST and choice of executors Public Trustees as executors and trustees Will draftsperson appointing herself or himself executor Minors as executors Shifting executorships — executor ‘for the time being’ Appointing foreign executors Appointing solicitor or firm of solicitors Appointing company other than trustee company as executor Renunciation by executors Order in which executors are named in will Exemption of executors and trustees from liability for loss

Form 10.01 Appointment of two or more executors and trustees jointly Form 10.02A Appointment of executors and trustees in the alternative Form 10.02B Appointment of executors and trustees in the alternative (alternative form) Form 10.03 Appointment of numerous executors and trustees: disagreement between executors Form 10.04 Wish that only two of a number of executors prove the will Form 10.05 Appointment of sole executor and trustee Form 10.06A Foreign executors and trustees: appointment of executors for the Australian will Form 10.06B Foreign executors and trustees: appointment of executors for the foreign will Form 10.07 Appointing a solicitor as executor and trustee Form 10.08 Interested executor not to participate in exercise of discretion

11

Payment of Executors: Gifts in Lieu of Payment; Gifts to be Independent of Acting as Executor or Trustee Introductory Notes Entitlement of executors to remuneration

Gifts to persons appointed executors Legacies given to executors Gifts of residue to executors Legacy to executors may exclude commission Legacy to executor to be priority gift Charging clauses: forms of charging clause; inadequate charging clause Inadequate provision for remuneration of executors Clause empowering executor to charge professional fees and seek commission Relationship between professional fees (or charges), nonprofessional fees and commission Will draftsperson inserting charging clause in her or his own favour Clause empowering draftsperson–executor to charge professional fees and to receive commission in discretion of court Clause empowering executor to receive commission at set rate Charging clause (or other benefit) in will drafter’s own favour: Australian Capital Territory, New South Wales, Queensland, South Australia and Victoria Loss of professional charges if person benefiting from clause is witness to will Form 11.01 Gift to executor not excluding commission Form 11.02 Gift to executor excluding commission Form 11.03 Gift to executor not conditional on acting as executor Form 11.04

Instruction that legacies to executors rank in priority to other gifts Form 11.05 Professional charges clause Form 11.06 Professional charges clause including right to claim commission

12

Executor’s Right to Buy Trust Property Introductory Notes Right of executor or trustee to buy trust property Valuations Court applications Form 12.01 Right of personal representative to buy or appropriate trust property

13

Solicitors to be Employed by Executors Introductory Notes Testator may nominate solicitors to be employed Form 13.01 Request to employ a named solicitor, with substitutional provision Form 13.02 Request to employ a named firm of solicitors, with substitutional provision Form 13.03 Requirement that a trustee company employ a particular solicitor

14

Family

Provision;

Financial

Agreements

—

Prenuptial, Nuptial and Postnuptial Introductory Notes Family provision in Australia; eligible claimants; should testator keep provisions of will secret? Disappointment of family members Eligible claimants Should testator keep provisions of will secret from beneficiaries who will be disappointed? ‘General considerations’ applicable to level of provision Avoiding family provision Avoiding family provision: multiculturalism and ‘moral duty’ test Avoiding family provision: contract and mutual wills Avoiding family provision: covenant Covenant and retaining control during life Avoiding family provision: survivorship agreement in partnership agreements, insurance policies or pension schemes Avoiding family provision: creation of joint tenancy with intended beneficiary Avoiding family provision: conversion into immovable property in appropriate foreign jurisdiction Avoiding family provision: creation of inter vivos trust Avoiding family provision: general comment on methods of avoidance Avoiding family provision: gift conditional on not taking family provision proceedings is void Avoiding family provision: New South Wales Avoiding family provision: practical solution for all jurisdictions? Family provision: differences between jurisdictions

Release of rights to claim family provision; contracting out — general principles Release of rights to family provision in New South Wales Form of words to exclude particular persons from benefiting under will or intestacy Testator’s statement of reasons for disinheriting a relative Admissibility of statements by testator giving reasons for dispositions in will New South Wales Australian Capital Territory, Northern Territory Tasmania Victoria Western Australia Queensland, South Australia Whether to keep testator’s statements of reasons for dispositions in will Choice of executors Financial agreements: prenuptial, nuptial and postnuptial Form 14.01 Separate statutory declaration (not in will)

15

Taxes and Duties Introductory Notes Death duties abolished; tax planning Capital gains tax How capital gains are taxed CGT assets Exceptions and exemptions Main residence exemption Main residence for part only of ownership period

Concurrent income-producing use of main residence Calculating capital gain or capital loss Discounting CGT and deceased estates: what happens when owner of CGT asset dies? Passing of asset Gift to ‘exempt entity’ (charity etc) which is DGR is disregarded Not ‘passing’: gift to superannuation entity and to person not Australian resident CGT: joint tenants CGT: record keeping Drafting for CGT and other tax issues Not forcing sale of assets Options to purchase Care in making specific gifts Having power of appropriation Life interests and rights to occupy Pecuniary legacies Capital gains and losses realised during life of deceased Testamentary discretionary trust On whom is burden of CGT to fall? Superannuation Appointment of executors to deal with taxation issues Taxation advice disclaimer Incidence of duties in other countries Tax consequences of poor estate planning Form 15.01 Possible Commonwealth or state tax on capital of estates

Form 15.02 Foreign duties Form 15.03 Capital gains tax Form 15.04 Disclaimer

16

Releases Introductory Notes Wording and effect of release Consequences of failing to include release Form 16.01 Release of simple debt owing to testator Form 16.02 Release of secured debt Form 16.03 Release of debt and the debtor’s estate Form 16.04 Costs of discharge

17

Life Insurance Policies and Superannuation Introductory Notes Life insurance policies, superannuation and other investments Life policies: nomination of beneficiary of policy Protection of life policies: bankrupt estates Availability of life policies for payment of funeral and testamentary expenses: bankrupt estates Superannuation Destination of superannuation proceeds: taking proceeds

of superannuation into account Binding nominations Taxation of superannuation death benefit payments Payment of superannuation from estate Form 17.01 Instruction that life policy be available to pay debts Form 17.02 Authority to executor to apply life policy moneys Form 17.03 Payment of superannuation

18

Gift of Whole Estate to Executors on Trust Introductory Notes Gift of whole estate to executors on trust is basic to these forms Form 18.01 Gift of whole estate to executors on trust

19

Pecuniary Legacies Introductory Notes Relative size of pecuniary legacies, and capital gains tax Wording of legacies in corresponding wills of spouses or partners Pecuniary legacy should be expressed as fixed sum Substitution Simple pecuniary legacy Legacies to minors, grandchildren or nephews and nieces Gift to creditor of testator Gift to debtor of testator Order of payment of legacies

Legacies to more than one beneficiary Minimising effect of inflation Interest on pecuniary legacies Legacy to brothers, sisters, and brothers- and sisters-in-law Legacy to named persons in equal shares Legacy to named persons in unequal shares Gift to person who might have disappeared, is missing or cannot be found Numerous pecuniary legacies; keep legacies to charities separate Legacy to executor or trustee Payment of legacy before administration complete Form 19.01 Common form of pecuniary gift Form 19.02 Pecuniary legacy in corresponding wills of spouses or partners to avoid giving double legacy Form 19.03 Gift to grandchildren equally Form 19.04 Gift to grandchildren by families Form 19.05 Gift to issue per capita Form 19.06 Gift to more than one beneficiary with provision for accruer Form 19.07 Gift to more than one beneficiary, no provision for accruer Form 19.08 Special power to discharge gift to minor

Form 19.09 Special discharge power (alternative form) Form 19.10 Gift to beneficiary who is testator’s creditor Form 19.11 Gift to beneficiary who is testator’s debtor Form 19.12 Release of debt to testator Form 19.13 Gift to rank in priority to other legacies Form 19.14 Pecuniary legacy to be adjusted according to the price index Form 19.15 Interest on legacies to spouse and children Form 19.16 Interest on other legacies Form 19.17 Exclusion of interest on legacies Form 19.18 Gift to a person who might have disappeared, is missing or cannot be found

20

Personal Property Introductory Notes Difficulties with gifts of personal property Failure of gift due to disposal (ademption) or item destroyed or ceasing to exist Long lists of chattels Accurate description of personal property specifically given

Substitution and accrual Difficulties with gifts of personal property: ownership and charges Assets owned by testator subject to mortgage or charge Assets owned by third party such as finance company Assets owned by testator, money owed on credit sale Assets owned by persons as joint tenants Partnership assets, company owned assets, assets held on trust Expenses of maintaining property Personal effects (household chattels; personal possessions) Incorporation of documents by reference — lists Incorporation of audio list Word document admitted to probate under dispensing provision Distribution by trusted family member Gifts for maintenance of particular animals Instruction that pet be put down Form 20.01 Simple gift of specific assets Form 20.02 Asset subject to charge, to be primarily liable for debt (alternative to Form 20.04) Form 20.03 Gifts of chattels on hire-purchase Form 20.04 Gifts of chattels partly paid for Form 20.05 Gifts coupled with instructions as to cost of keeping them

Form 20.06 Gift as determined by executors Form 20.07 Gift of private chattels Form 20.08 Gift of chattels contained in list Form 20.09 Gift of chattels to trusted person absolutely for distribution Form 20.10 Gift of chattels to trusted person absolutely for distribution (alternative form) Form 20.11 Gift of ‘personal effects’ Form 20.12 Gift for the maintenance of a particular animal (alternative form) Form 20.13 Trust for the maintenance of a particular animal (alternative form)

21

Shares and Other Interests in Respect of a Limited Company; Appointment of Directors Introductory Notes Difficulties with specific gifts of shares; shares bought on margin Ademption General gift of all securities Alternative provision in case of ademption Private and family companies Unequal division of securities

Substitution Gift of securities to brothers, sisters, and brothers- and sisters-in-law Gift of securities to named persons in equal shares Form 21.01 Gift of securities in a named limited company with provision for amalgamation etc of the company Form 21.02 Gift of all securities in companies Form 21.03 Alternative provision for beneficiary if gift is adeemed Form 21.04 Exercise of power to appoint governing director Form 21.05 Gift of governing director’s share Form 21.06 Gift of special class of share

22

Real Property Introductory Notes Debts charged on, and ownership of, real property Ademption of specific gifts Drafting to protect against ademption Gift of option to purchase real property; CGT implication Capital gains tax implications of testamentary option may be serious Alternatives to option Substitution Rural land

Description of land Aboriginal land Testator is tenant in common; devise of testator’s share Form 22.01A Gift of real property Form 22.01B Gift of real property or surplus proceeds Form 22.02 Gift of option to purchase real property Form 22.03 Gift of interest of tenant in common — right of occupation to other tenant in common

23

Specific Gift of Property Subject to Mortgage or Charge; Locke King’s Act Introductory Notes Specific gift of property subject to mortgage or charge — Locke King’s Act Potentially unsatisfactory operation of Locke King legislation Discharge of mortgage debt on property owned by joint tenants Express inclusion or exclusion of Locke King’s Act Form 23.01 Instruction that debt secured on property given be paid out of residue (negates Locke King’s Act) Form 23.02 Instructions as to discharge of mortgage debt on property held by the testator as a joint tenant Form 23.03 General instruction that debts secured on whatever property

the testator may specifically give be paid by the person taking the property (imports Locke King’s Act into the will) Form 23.04 Instruction that debts secured on particular property specifically given be paid by the person taking the property (imports Locke King’s Act into gift)

24

Annuities and Protective Trusts Introductory Notes Annuities — wording, effects, alternatives Annuities in corresponding wills of spouses or partners Providing annuity without unnecessarily tying up estate assets Gift of lump sum sufficient to buy annuity Gift of annuity to be purchased by executors — for single annuitant, or for children or grandchildren Executors empowered to set aside fund from which to pay annuity Multiple annuities to be paid by executors Simple annuity to be paid by executors Annuity payable to minors Inflation — annuity linked to Consumer Price Index Possible abolition of Consumer Price Index Annuity to supplement or maximise pension Protective trusts: annuity protected against bankruptcy or attempts by annuitant to capitalise annuity Protective trusts in South Australia and Northern Territory Termination or reduction of annuity on remarriage Form 24.01 Gift of lump sum sufficient to buy an annuity of a specified

amount Form 24.02 Instruction to purchase annuity for specified amount Form 24.03 Simple annuity payable by monthly instalments Form 24.04 Annuity of specified sum to children (or grandchildren) during minority Form 24.05 Annuity adjusted according to the price index from date of will to death of testator and thereafter (preferred form of indexed annuity) Form 24.06 Annuity adjusted according to the price index from date of death of testator but with no adjustment between date of will and date of death (Form 24.05 is preferred to this form) Form 24.07 Annuity varying with permitted income of pensioner Form 24.08 Provision to set aside fund to pay annuity Form 24.09 Provision to purchase annuity Form 24.10 Protective trust of annuity (incorporation of statutory form)

25

Trusts Introductory Notes Trust created on death of survivor, where corresponding wills of spouses or partners are drawn Testamentary discretionary family trust (Form 25.01);

choice of precedent; advice and direction of court Detailed precedent for testamentary discretionary family trust with explanatory notes Asset protection: advantage of testamentary discretionary family trust Distributions to minors; keeping records When testamentary discretionary family trust is appropriate; other forms of trust Trustees seeking advice and direction from court Trusts and Centrelink benefits; veterans’ entitlements; pensioners; and occupants of subsidised housing Gifts to pensioners etc: possible solutions Exercise by will of power to appoint controller, appointor or custodian of existing trust Discretionary trusts and choice of trustees Accumulations Addition by will to funds in existing discretionary trust Discretionary trust — letter to executors Perpetuities; variation or amendment of trust Avoiding perpetuity period by using South Australia as forum Family members with disability Gamblers, alcoholics, bankrupts Disposition of assets already held in trust Trusts and capital gains tax Trusts for maintenance of particular animals Charitable and non-charitable trusts — keep separate Exemption of executors and trustees from liability for loss Trustees as beneficiaries; wide powers to benefit themselves — Does this imply no trust? Merger

Is an arrangement of this kind a ‘sham’? What is the effect of finding that a trust is no more than a person’s ‘alter ego’ or ‘puppet’ or ‘creature’, or that a person has ‘de facto ownership’ of the trust property? Is there analogy between beneficiary who controls trustee of trust and donee of general power of appointment? Does ‘effective’ ownership amount to actual ownership? Conclusion Sources and authorities not considered in Public Trustee v Smith Implications of deciding that there is no trust Overall conclusion: trust is valid Conservative approach is available to draftsperson Appointing protector Form 25.01 Testamentary Discretionary Family Trust Form 25.01A Testamentary Discretionary Family Trust Form 25.02 Discretionary trust for testator’s children and grandchildren with power to distribute income and capital during subsistence of the trust Form 25.03 Discretionary trust for testator’s children and grandchildren with power to distribute income but not capital during subsistence of the trust Form 25.04 Gift on the trusts of an existing discretionary trust Form 25.05 Discretionary trust for person with disability where the estate is

to be divided into unequal shares with one share to be held in trust primarily for the person with disability Form 25.06 Discretionary trust for person with disability where the estate or the residue is to be divided into equal shares with one share to be held in trust primarily for the person with disability Form 25.07 Discretionary trust for person with disability where the whole estate or the residue is to be used for the person with disability

26

Life Interests, Including Occupation of Matrimonial Home, Substitutionary Provisions, Apportionment and Powers of Appointment Introductory Notes Avoid long-term provisions; limited usefulness of life estates Power of alienation of land subject to life estate; and other powers Testator’s home; ‘my principal residence at my death’ Responsibility for outgoings Equitable life estates Short forms of equitable life estate Legal life estate Mere right of residence, and its family provision and taxation implications Right to occupy part of building Right to occupy: ‘ceased permanently to reside’ Personal effects (household chattels) (personal possessions) Executors’ power to invest in land Income of residue given to spouse, partner or other person

Right to terminate life interest Devolution of balance of subject matter of gift for life Subject matter to form part of residue Gift to named beneficiaries Discretionary trust Children of testator who survive life tenant Issue of testator who survive life tenant Children of holder of life interest Powers of appointment Life tenant: apportionment of income as between life tenant and beneficiary in remainder where whole estate is subject to life tenancy Balancing interests of life tenant and beneficiary in remainder: investment obligations of trustees, and apportionment between income and capital beneficiaries Apportionment between income and capital negatived Capital gains tax Accumulations Use of word ‘property’ rather than ‘assets’ Form 26.01 Residence or substitute accommodation for life, using equitable life estate of fund which can be augmented or diminished, obligation to pay taxes on and maintain the property to fall primarily on fund Form 26.02 Residence or substitute accommodation for life, using equitable life estate of fund which cannot be augmented from the estate or diminished, obligation to pay taxes on and maintain the property to fall primarily on life tenant Form 26.03

Equitable life estate for spouse or other person, life tenant to maintain property Form 26.04 Equitable life estate for spouse or other person, the executors maintaining the property Form 26.05 Residence or substitute accommodation for life, using right of occupation Form 26.06 Right of residence in part of home Form 26.07 Provision to allow spouse or partner and children of full age to terminate life interest or right of occupation Form 26.08 Income of residue given to testator’s spouse or partner or other person for life Form 26.09 Gift over to children of testator alive at death of holder of life interest, with accruer and substitutional provision Form 26.10 Gift over to issue alive at death of holder of life interest, with accruer and substitutional provision Form 26.11 Gift over to children of holder of life interest, with accruer and substitutional provision Form 26.12 Gift over to children appointed by holder of life interest — usually spouse or partner Form 26.13 Apportionment negatived

27

Residuary Gifts, and Gifts of the Whole Estate Introductory Notes Statutory order of application of assets and trust for sale ‘Residue’: use of word ‘residue’ to avoid partial intestacy Gift to list of testator’s children or other relatives by name: disadvantage; danger of partial intestacy Failure of gifts: minor beneficiaries: should vesting be immediate or postponed until majority? Gifts to minor grandchildren: contingent on attaining majority: avoid partial intestacy Gifts contingent on reaching age greater than 18 Gifts contingent on marriage under age of majority Gifts to beneficiaries as tenants in common or joint tenants Children: distribution on reaching majority Testamentary 30-day survivorship provision Statutory 30-day survivorship provision in some jurisdictions Substitution; testamentary provisions Is substitution to apply to all beneficiaries in the gift, or only to some of them? Are substitutes for predeceased beneficiary to be children, or issue, of that beneficiary? Substitution; statutory provisions Testamentary and statutory accrual (accruer) provisions How testamentary substitution and accruer provisions work together, using Form 27.04 as example Failure of gifts; basic rules Failure of gifts: what happens if beneficiary does not survive testator Failure of gifts: substitution or accrual may apply to save gift from lapse: beneficiaries are issue of testator

Failure of gifts: substitution or accrual may apply: beneficiaries are not issue of testator Failure of gifts: testamentary accrual and severance: which is dominant Failure of gifts: no substitution or accrual provision Failure of gifts of residue or whole estate: gifts in fractional parts: result of failure of gift of residue Result of failure of gift of residue or whole estate Failure of gifts: failure for reasons other than failure to survive testator (or survive testator by 30 days) Gifts to ‘issue’ by representation: use of ‘per stirpes’ Half-blood relatives and relatives by affinity Corresponding wills of husband and wife containing residuary gift to brothers and sisters or other persons Preventing intestacy by using gift to charity Gift to beneficiaries in unequal shares Accrual aspect Number of shares Death of child before making of will Gifts to parents of testator Personal effects (household chattels) to spouse or partner Form 27.01 Gift of whole estate or of residue to husband or wife or partner Form 27.02 Gift of whole estate or of residue with no provision for substitution Form 27.03 Gift of whole estate or of residue to named persons in equal shares, with provision for accrual and with provision for substitution if desired

Form 27.04 Gift of whole estate or of residue to children with substitutional provision and provision for accrual Form 27.05 Residuary gift to brothers, sisters, brothers-in-law and sisters-inlaw per capita with provision for accrual Form 27.06 Residuary gift to brothers, sisters, brothers-in-law and sisters-inlaw with substitutional provisions, half to each family, with provision for accrual Form 27.07 Gift to named persons in unequal shares, with provision for accrual and substitution Form 27.08 Substitution of children of all of a list or class of original beneficiaries: delayed vesting for all beneficiaries Form 27.09 Substitution of children of all of a list or class of original beneficiaries: immediate vesting for all beneficiaries Form 27.10 Substitution of issue of all of a list or class of original beneficiaries: delayed vesting for all beneficiaries Form 27.11 Substitution of issue of all of a list or class of original beneficiaries: immediate vesting for all beneficiaries Form 27.12 Substitution of children of some only of a list or class of original beneficiaries: delayed vesting for all beneficiaries Form 27.13 Substitution of children of some only of a list or class of original beneficiaries: immediate vesting for all beneficiaries

Form 27.14 Substitution of issue of some only of a list or class of original beneficiaries: delayed vesting for all beneficiaries Form 27.15 Substitution of issue of some only of a list or class of original beneficiaries: immediate vesting for all beneficiaries Form 27.16 Substitution of beneficiary’s husband or wife for deceased beneficiary Form 27.17 Exclusion of statutory substitutions

28

Gifts to Charities Unincorporated Bodies

and

Incorporated

or

Introductory Notes Gifts to charities, incorporated and unincorporated associations—information required Name of charity or association must be correct Gifts to charities: failure of gift Gifts to charities: encouraging testators to make constructive and effective gifts to charities and charitable foundations; perpetuities Gifts to charities: capital gains tax considerations; beneficiary an exempt entity Gifts to charity: leave charity share of estate, or sum of money? Gifts of income to such charities as the executors may select New South Wales, Northern Territory, Queensland, Tasmania and Victoria: wills making gifts to noncharitable unincorporated associations Drafting gift to non-charitable unincorporated association in

Australian Capital Territory, South Australia, Tasmania and Western Australia First consideration: constitution does not make provision for trustee or trustees to own property for benefit of members of unincorporated association Second consideration: does constitution make provision for taking transfer of specific items of personal or real property for association? Third consideration: is there ‘a large and fluctuating membership’ or anything else to ‘preclude members at any time from dividing the subject of the gift between them’? Further possibility: gift to treasurer on condition subsequent that treasurer use it for benefit of association Provision for amalgamation with another body General charitable intent may save otherwise void gift Specific legacies and devises to unincorporated associations Form 28.01 Gift to named charity Form 28.02A Gift of whole estate or of residue to several named charities successively Form 28.02B Gift to named charity or charities in executors’ discretion Form 28.02C Gift of equal sums of money to each of a number of named charities Form 28.02D Gift of unequal sums of money to various charities Form 28.02E

Gift of equal shares of the estate or of the residue of the estate to various charities Form 28.02F Gift to named charities in unequal shares, with provision for accrual and substitution Form 28.03 Gift to named incorporated association which is not a charity, with substitutional provision for charity Form 28.04 Gift of income from trust fund to charity at executors’ discretion Form 28.05 Gift for general charitable purposes Form 28.06 Gift to the trustees of an unincorporated association which is not a charity Form 28.07 Gift to the committee members of an unincorporated association which is not a charity if the circumstances or constitution make division among the members impossible Form 28.08 Power to convert specific property to money Form 28.09 Gift to unincorporated non-charitable body in a New South Wales, Northern Territory, Queensland or Victorian will

29

Powers of Executors and Trustees Introductory Notes Executors have wide powers; fiduciary position of executors; permissible forms of investment Permissible forms of investment

Trustees’ powers to sell, to retain, and to allocate receipts or outgoings between capital and income Power to maintain and advance minors Date of vesting extended beyond minority Long-term administration: trusts, life estates, minor beneficiaries: choice of executors and trustees GST and choice of executors Loans to beneficiaries; acquisition of property for use or occupation by beneficiary; acquisition of property for profit or capital gain; borrowing by executors Trustees empowered to act as directors; to apply for or take up bonus shares, rights or benefits Power to delegate; and appoint nominees and custodians Power of appropriation of property to beneficiaries by executors Extending executors’ statutory power to sell Power to lease Executors’ power to set aside fund to enable accelerated distribution; income tax implications Giving trustees power to purchase estate property Carrying on business: businesses generally Carrying on small businesses Choice of executors where business is given as legacy Farming businesses: gift provisions in will; power to carry on business Position of executors carrying on business Provisions exempting executors and trustees from liability Professional trustees Unpaid trustees Will draftsperson inserting exemption clause in estate or

trust he or she will be administering Provision for executors to take counsel’s opinion Provision for executors to obtain and consider investment advice Form 29.01 General form of powers of executors and trustees Form 29.02 Comprehensive power of disposition Form 29.03 Power to carry on unincorporated business or partnership Form 29.04 Power to carry on unincorporated business or partnership Form 29.05 Taking opinion of counsel Form 29.06 Advice on investments

30

Codicils Introductory Notes Codicils: when to use; precautions Revocation clauses in codicils Form 30.01 Codicil Form 30.02 Second codicil Form 30.03 Codicil for endorsement on the original will

31

Attestation

Introductory Notes Formal requirements for wills Validity of will: inference of knowledge and approval where usual attestation clause is used Express statement of knowledge and approval where special attestation clause used for unusual methods of execution Dispensing provisions: formalities not observed; informal wills Onus of proof Literature on the dispensing provisions Dispensing provisions not uniform throughout Australia Requirements for dispensing provision to operate Document Testamentary intentions Without more? Should dispensing provisions be construed liberally? ‘Stopgap’ or ‘interim’ will or document Audio will; Microsoft Word will Letters of administration with will annexed may be granted under dispensing statutes How dispensing provisions affect will draftsperson Minors as testators Australian Capital Territory New South Wales Northern Territory Queensland South Australia Tasmania Victoria

Western Australia Minors as testators — privileged testators Alterations to will Witnessing function; who can be a witness?; witness– beneficiaries Witnesses must ‘attest and subscribe’ will Witness–beneficiaries Unreliable person as witness Child as witness Attestation clause Special attestation clauses for unusual methods of execution or testators with disabilities Blind testator or testator unable to read or write Testator unable to read but able to write her or his name Testator unable to read English but can speak it Testator unable to speak English or read it but can sign Testator unable to speak English or read it, or sign her or his name Testator able to read but unable to write Placement of attestation clause: pagination of will Foreign wills and wills with foreign element: formal requirements Wills for persons lacking testamentary capacity Form 31.01 Standard attestation for testator Form 31.02 Standard attestation for testatrix Form 31.03 Attestation where testator is blind or unable to read or write

Form 31.04 Attestation where the testator is unable to read but is able to write her or his name Form 31.05 Attestation where the testator cannot read English but can speak it and can sign her or his name Form 31.06 Attestation where the testator is unable to read English or speak it but can sign her or his name Form 31.07 Attestation where the testator is unable to read English or speak it, and cannot write her or his name Form 31.08 Attestation where the testator is able to read but unable to write Form 31.09 Attestation where testator is able to read but unable to write (Preferred Alternative Form) Form 31.10 Statement that document or statement is not testamentary or not binding Form 31.11 Attestation clause for court authorised will for a person lacking testamentary capacity

32

Backing Sheet Introductory Notes Backing sheet (cover) Form 32.01 Backing sheet (cover)

33

Contracts as to Dispositions by Will; Mutual Wills Introductory Notes Dispositions by will may be subject of contract Subsequent marriage and contracts as to disposition by will Contracts as to dispositions by will should generally be avoided Property affected by contract should be specified precisely Survivor’s power to deal with assets after death of firstdying Contracts should not deal with matters extraneous to mutual wills arrangement Contract — form and proof Contracts to leave property by will and family provision Testamentary promises Oral mutual wills agreements Practical consequences for will drafting Form 33.01 Contract to make a will containing agreed provisions in a schedule Form 33.02 Contract to make mutual wills containing agreed provisions in schedules Form 33.03 Contract not to diminish estate

Appendix A — Most Used Forms Dispositions by will may be the subject of a contract Form 3.01 Heading, commencement and testimonium Form 4.01

Comprehensive (general) revocation clause Form 5.01 Inexpensive disposal of body Form 5.05 Body to be available for anatomical, therapeutic, medical or scientific purposes Form 6.01 Presumption of survivorship Form 6.02 Standard clause, recommended for use in all wills except where Form 9.01 is used, requiring that beneficiaries survive the testator by 30 days Form 6.03 Exclusion of requirement that beneficiaries survive the testator by 30 days Form 7.01 Exclusion of adopted or surrogate children Form 7.02 Exclusion of foster or stepchildren Form 7.03 Exclusion of ex-nuptial children Form 7.04 Alternative form for exclusion of ex-nuptial children Form 7.05 Carer or guardian not to suffer financial hardship Form 7.06 Appointment of testamentary guardian Form 7.07 Appointment of testamentary guardian to act only if there is no surviving parent

Form 7.08 Appointment of testamentary guardians to act only if there is no surviving parent Form 8.01 Contemplation of marriage expressed: will conditional on marriage Form 8.02 Contemplation of marriage expressed: will not conditional on marriage Form 9.01 Schedules for spouse or partner Form 10.01 Appointment of two or more executors and trustees jointly Form 10.02A Appointment of executors and trustees in the alternative Form 10.03 Appointment of numerous executors and trustees: disagreement between executors Form 10.04 Wish that only two of a number of executors prove the will Form 10.05 Appointment of sole executor and trustee Form 11.01 Gift to executor not excluding commission Form 11.02 Gift to executor excluding commission Form 11.03 Gift to executor not conditional on acting as executor Form 11.05

Professional charges clause Form 17.03 Payment of Superannuation Form 18.01 Gift of whole estate to executors on trust Form 19.01 Common form of pecuniary gift Form 19.02 Pecuniary legacy in corresponding wills of spouses or partners to avoid giving double legacy Form 20.11 Gift of ‘personal effects’ Form 27.01 Gift of whole estate or of residue to husband or wife or partner Form 27.02 Gift of whole estate or of residue with no provision for substitution Form 27.03 Gift of whole estate or of residue to named persons in equal shares, with provision for accrual and with provision for substitution if desired Form 27.04 Gift of whole estate or of residue to children with substitutional provision and provision for accrual Form 27.05 Residuary gift to brothers, sisters, brothers-in-law and sisters-inlaw per capita with provision for accrual Form 27.06 Residuary gift to brothers, sisters, brothers-in-law and sisters-in-

law with substitutional provisions, half to each family, with provision for accrual Form 27.07 Gift to named persons in unequal shares, with provision for accrual and substitution Form 27.08 Substitution of children of all of a list or class of original beneficiaries: delayed vesting for all beneficiaries Form 28.01 Gift to named charity Form 28.02B Gift to named charity or charities in executors’ discretion Form 29.01 General form of powers of executors and trustees Form 30.01 Codicil Form 31.01 Standard attestation for testator Form 32.01 Backing sheet (cover)

Appendix B — Model Wills General Comments Example of instructions for will and will drawn according to those instructions: illustrates the structure of a simple will: will of husband where corresponding wills are being prepared for a husband and wife with children, where neither has a child from a previous relationship Will of single person

Wills of partners, one of whom has children from a previous relationship Will of Ann Johns, the first testator, a partner in a de facto relationship with children from a previous relationship Will of Peter Joseph Lent, the second testator, partner of Ann Johns Drafting a will of a parent of a child with an intellectual handicap Will providing for person with intellectual handicap

Appendix C — International Convention: Conference on Private International Law

Hague

Signatories to Convention No 11 Member States of the Hague Conference which are Contracting States to or have signed this Convention: Non-Member States of the Hague Conference which are Contracting States to or have signed this Convention: Index

[page 1]

Chapter 1 GENERAL CONSIDERATIONS — ESTATE PLANNING; VALIDITY OF WILL, REQUIREMENTS FOR; CAPACITY; CONCEALMENT OF WILL; ORDER TO PRODUCE WILL Introductory Notes Suggested method of using these precedents 1.1 The suggested method of using these precedents is set out in Chapter 2. The framework or structure of a will is set out in Form 2.03 and see [2.42]. A useful selection of most-used forms is given in Appendix A, and selected model wills are offered in Appendix B.

Estate planning 1.2 The will is one part of an estate plan, an important step in the strategic pattern aimed at preserving the testator’s property for their family or other beneficiaries in days of changing taxation rules, interest rates and inflation. Public trustees and trustee companies have performed a considerable public service in advertising the need for frequent revision of wills, but the legal profession needs to supplement their efforts. Sometimes a client simply requests a will. The will draftsperson should gain sufficient

information from the client to be able to assess the need for an overall estate plan. The client’s affairs may be so arranged — or disordered — as to make it advisable to order or rearrange them. The matter has become much more difficult and urgent by the imposition of capital gains tax and the rise in importance of superannuation. Unless an estate is reasonably simple, expert taxation or estate and financial planning advice should be considered. Fundamentally, an estate plan should do a number of things: 1. It should create an ordered, secure, yet simple and flexible overall regime for the client’s affairs, for the present and the future. See further on flexibility at [1.4]. (a) It should be administratively simple to operate, and it should not be unreasonably expensive to maintain. [page 2]

2.

3.

(b) The will should be seen as an integral, and indeed essential, part of the overall estate plan, and should fit comfortably with the other parts of the plan. A will should not be drafted in isolation from other parts of the testator’s overall situation. The estate plan should provide scope for building up the assets during the testator’s life. (a) It should be designed with due regard to the use of superannuation and life insurance as tools for building up or preserving estates and providing for the testator and her or his family and beneficiaries. (b) It should be ‘tax friendly’ towards the client during life and towards the family and others after death. It should provide a suitable balance between enjoyment of property and income during life, and the preservation or

creation of capital for the testator’s family or other beneficiaries on death. 4. It should recognise, take account of and as far as possible balance the claims and needs of persons affected by the plan. (a) It should provide for a comfortable and secure retirement for the testator and her or his spouse or partner. (b) It should provide for children of the current relationship. (c) It should provide for children of the testator from former relationships, if the testator is in a blended (or melded) family (a blended family is a family in which the testator presently has a spouse or partner, and also has children from another relationship). The special considerations that arise in relation to blended families are discussed in [9.11]ff. (d) Persons who might have a family provision claim against the testator or to whom the testator owes some moral duty must be considered. Such people include a former spouse or partner, children (including adult children) and persons who are vulnerable or handicapped. (e) If the estate is substantial, the estate plan could provide for charities and foundations: see Chapter 28, especially [28.4]. 5. The plan should not have unforeseen adverse effects on the claims of persons who might be entitled to social security benefits. 6. The plan could include a testamentary discretionary family trust in situations where the family should be offered taxeffective benefits, or where there is a need to protect and preserve estate assets: see Chapter 25 and Form 25.01. The estate plan should be reviewed at least once every two years

if the estate is simple and stable, and more frequently if the estate is large or complex. This is particularly important if the client’s personal or financial affairs are subject to change.

Estate planning linked to tax planning and will drafting 1.3 Estate planning, tax planning (particularly capital gains tax planning) and will drafting are all closely linked. On capital gains tax, see Chapter 15; on superannuation, see Chapter 17. Some comments on estate planning are made in [page 3] Chapters 9 (see especially [9.12]ff on provision for spouse or partner), 15, 17 and 25 (testamentary discretionary family trusts).

Estate plan should be flexible 1.4 The estate plan should be flexible and adaptable enough to be able to cope with unforeseeable changes in circumstances, domicile and the law. It should not create estate planning difficulties for the family or other beneficiaries. Inflexible estate plans which include companies, life estates, inflexible trusts or other vehicles can create very difficult and expensive problems if the testator’s marriage ends in divorce or separation; the taxation, superannuation or social security laws are changed; or for some other reason the arrangements have to be disentangled. An elegant tax minimisation structure can prove to be less tax efficient and more expensive after changes in the taxation law or personal circumstances than would have been the case if the client had simply accepted the duty to pay tax in the ordinary way, and adopted a simple estate plan. Complexity in itself is not necessarily a bad thing: the questionable thing is inflexibility,

particularly if this is coupled with a high degree of specificity and detail. It should be possible to escape from the plan if it should be necessary to do so. The testamentary discretionary family trust in Form 25.01 is drafted with these principles in mind.

Drafting your own will, or will for family member 1.5 Be cautious about drafting your own will because you will lack objectivity. Beware of drafting a will for a family member or client if you are a beneficiary, or married to a beneficiary. Doing so may raise the doctrine of suspicious circumstances: see [1.9] and compare RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, LBC Information Services, Sydney, 1996, [5.16]; IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New Zealand, 2nd ed, Law Book Co, Sydney, 1989, [304]; and see McKinnon v Voigt [1998] 3 VR 543; Roos v Karpenkow (1998) 71 SASR 497; Robertson v Smith [1998] 4 VR 165; Vernon v Watson [2002] NSWSC 600; BC200203703; Bisdee v Smith [2004] TASSC 152; BC200408727; Dore v Billinghurst [2006] QCA 494; BC200609632; see too [11.11]ff (solicitor drafting a will in her or his own favour).

Interview client personally: do not draft for client you have not seen 1.6 The will draftsperson should never draft a will for a client whom he or she has not seen (Estate of Tucker [1962] SASR 99 at 101 per Mayo J; Vernon v Watson [2002] NSWSC 600; BC200203703); nor should the will draftsperson accept instructions for a will from a person other than the testator or accept written instructions for a will unless handed over in person: Estate of Tucker at 101. In Vernon v Watson the main beneficiary gave instructions to the solicitor, who complied with a request not to see the testator and took a benefit under the will he drew. So, where a husband, for example, asks for corresponding wills to be drawn for himself and

[page 4] his wife, each leaving everything to the other, the request should not be complied with. Make sure by talking to her that this is really what his wife wants — she may have considerable assets while he has none, and he may have a longer expectation of life than she has. Some solicitors send a prepared questionnaire to clients who wish to make wills, and then, on the basis of the answers given in the questionnaire, prepare draft wills for them. The questionnaire will address not only the client’s testamentary wishes but also the client’s assets and liabilities, interests in companies and trusts, superannuation, dependants and potential eligible beneficiaries. Questionnaires can be an efficient means of the client providing instructions and also a reasonable record of the client’s instructions given to the solicitor should a later problem arise. It is important that the solicitor take the time to discuss the client’s answers as set out in the questionnaire with them, to form a view as to the complexity of the client’s affairs and the client’s own understanding of them, and to advise generally on the range of estate planning issues that will usually arise, such as tax and the risk of a family provision claim. A sample questionnaire, referred to as Estate Information Manual, is Form 2.04 with commentary at [2.5]. An accountant or trustee company may instruct a solicitor to draft a will or trust document on the basis that the accountant or trustee company will interview the client. The solicitor should not follow such instructions: Vernon v Watson [2002] NSWSC 600; BC200203703.

Requirements for validity of will 1.7 The requirements for the validity of a will fall into the following categories.

1.

Capacity — (a) age: see [1.12]; and (b) soundness of mind, memory and understanding: see [1.13]ff; 2. intention to make a will, alter a will or revoke a will, as the case may be; 3. knowledge and approval of the contents of the will: see [31.2]–[31.3]; and 4. proper formalities: see [2.76], [2.77], Form 2.05, Chapter 31. In summary, a valid will is a document, either properly executed or accepted as valid by the court under a dispensing provision (see [2.3]–[2.4] and [31.4]–[31.5]), intended to be testamentary and supported by the knowledge and approval of a free and capable testator.

Fraud, undue influence, and lack of knowledge and approval 1.8 Fraud, undue influence, and lack of knowledge and approval can all lead to total or partial invalidity. So, for example, fraud, coercion, mistake or lack of testamentary intention can vitiate one word, one clause or a whole will. In Wintle v Nye [1959] 1 WLR 284 most (but not all) of the will was struck down for lack of knowledge and approval. Sometimes the tainted words may be struck out, and the rest of the will left standing; sometimes the whole will fails because it may be impossible to strike out affected words without affecting the rest of the will [page 5] (Osborne v Smith (1960) 105 CLR 153); sometimes deception taints the whole will and renders it void: Robertson v Smith [1998] 4 VR 165 at 174; see also [1.9].

Undue influence in probate matters cannot normally be presumed by reference to the relationship between the testator and the beneficiaries (as those relationships are often those where gifts by will are expected — see Boyce v Rossborough (1857) 6 HL Cas 2 at 49; [1843–60] All ER Rep 610; and Halsbury’s Laws of Australia, LexisNexis Butterworths Online, [395-205] and [395210], accessed 29 April 2016. Parties asserting undue influence will usually need to prove actual undue influence, that is, actual pressure amounting to coercion that overcomes the will of the testator: see Petrovski v Nasev, Re; Estate of Janakievska [2011] NSWSC 1275; BC201110962 per Hallen J at [268]. However, Gaudron, Gummow and Kirby JJ in Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 said (at [63]): The approach taken in the probate jurisdiction appears to be concerned with the existence of a testamentary intention rather than the quality of that intention or the means by which it was produced. It is a concern of this latter nature which finds expression in the treatment by equity of dispositions inter vivos. In the present litigation, with respect to the dispositions made by the will, no party submitted that equity might apply or extend its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a will to a trust in favour of the residuary beneficiary or the next of kin.

The above passage leaves open the possibility that, in an appropriate case, equitable principles of undue influence might attach to the gifts in a will, even if actual coercion is not established in a probate contest: see the discussion in Boyce v Bunce [2015] NSWSC 1924; BC201512485. Undue influence is often pleaded as an alternative in defence of a claim for probate, together with lack of testamentary capacity. Ordinarily, an unsuccessful plea of undue influence will result in condemnation in costs, notwithstanding some of the exceptions as to the usual rule as to costs which are sometimes applied in probate matters: see Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562; BC201209989; Kenny v Wilson (1911) 11 SR (NSW) 460 — except where such allegations are based on ‘apparently very sufficient grounds’: see Mitchell v Gard (1863) 5 Sw & Tr 275.

Pleas of undue influence rarely succeed. For two recent successful claims of undue influence in New South Wales probate cases, see Petrovski v Nasev, Re; Estate of Janakievska and Dickman v Holley; Estate of Simpson [2013] NSWSC 18; BC201300224 (where it was claimed that neighbours of the testator had exerted undue influence on her to make a will in favour of a charity).

Onus of proof; shifting evidentiary onus of proof; importance of solicitor’s evidence in contested probate proceedings 1.9 The court will normally infer all the elements of a valid will from the mere fact that the court has before it a document which appears to be validly signed and witnessed. However, if the court’s suspicions are aroused on any particular matter, [page 6] such as capacity or lack of knowledge and approval, the court should be ‘vigilant and jealous’ (Viscount Simonds in Wintle v Nye [1959] 1 All ER 552 (HL) at 557; Dore v Billinghurst [2006] QCA 494; BC200609632 at [41], and see [14]) and require that its suspicions be allayed. The onus of proof in probate matters is not straightforward and the evidentiary onus may shift if evidence is produced to the court to cast doubt on the validity of the will. The principles may be summed up as follows: 1.

The onus is on the propounder (the person attempting to prove the will — usually the executor) to prove all the elements for a valid will to the reasonable satisfaction of the court (that is, on a balance of probabilities): Bailey v Bailey (1924) 34 CLR 558 at 570 per Isaacs J (point 1); Estate of Hassan (2008) 100 SASR 464; [2008] SASC 14; BC200800268.

2.

3.

4.

The onus continues during the whole case and must be determined on the whole evidence (Bailey v Bailey Isaacs J point 2). Once the propounder has shown that the will was apparently properly executed, and, more so, if the will was read over by or to the testator, the court may infer that the will bore the knowledge and approval of a free and capable testator (In the Will of Steward [1964] VR 179; Re Morris [1971] P 62) and make a grant of probate of the will. (Reading over is sometimes regarded as raising a rebuttable presumption of law: for example, Re Fenwick [1972] VR 646 at 652–3; Re Bryden [1975] Qd R 210, or a prima facie case — Bailey v Bailey, point 3.) At this stage the evidentiary onus shifts to the person disputing the validity of the will (described here as a ‘caveator’ having regard to the procedural course which contested probate matters usually follow). The caveator may produce evidence to cast doubt over the validity of the will, such as extreme age, physical or mental weakness or illness or the possibility of influence by persons having motive or opportunity to exercise undue influence. Broadly the shifting of the evidentiary onus is often put down to the doctrine of suspicious circumstances. The most common application of the doctrine of suspicious circumstances is where the beneficiary drafted, or gave instructions for the drafting of, the will: see, for example, Bull v Fulton (1942) 66 CLR 295 at 343 per Willams J; Worth v Clasholm (1952) 86 CLR 439 at 452–3 per Mullins J; Vernon v Watson [2002] NSWSC 600; BC200203703; Dore v Billinghurst [2006] QCA 494; BC200609632. Another example is where the testator was illiterate and there was no evidence of the will being read out to him: Harrison v Petersen [2000] QSC 415 (21 November 2000). If the caveator does produce evidence sufficient to cast doubt over the validity of the will, the evidentiary onus shifts back onto the propounder to remove the doubt and to prove that

the evidence raised by the caveator did not affect the validity of the will: Tyrrell v Painton [1894] P 151; In the Will of Steward [1964] VR 179; McKinnon v Voigt [1998] 3 VR 543; Kantor v Vosahlo [2004] VSCA 235; BC200408810. [page 7] 5.

6.

7.

8.

The quantum of evidence sufficient to establish a testamentary paper must always depend on the circumstances of each case, because the degree of vigilance exercised by the court varies with the circumstances — Bailey v Bailey per Isaacs J point 6. ‘Suspicious circumstances’ must be considered in context (such as where the beneficiary is the only natural object of the deceased’s testamentary bounty — Clocchiatti v Pierobon [2014] NSWSC 488; BC201403030. Only if the propounder does remove the doubt does the substantive issue arise. If the court’s doubt is allayed, then the onus is on those opposing the will to displace the case made for proving the will by proving fraud or undue influence affirmatively: Tyrrell v Painton [1894] P 151; Worth v Clasholm (1952) 86 CLR 439 at 452–3; McKinnon v Voigt [1998] 3 VR 543. If the caveator alleges fraud or undue influence directly, he or she must prove the allegation to the reasonable satisfaction of the court. The doctrine of suspicious circumstances if made out may require the propounder of the will to affirmatively prove the testamentary requirement of capacity. It is submitted that suspicious circumstances can be relied on where the facts are consistent with fraud (or undue influence), although the cases are not consistent on the question. In Nock v Austin (1918) 25 CLR 519 at 528, Isaacs J said that the doctrine could not be applied in the case of fraud. The following cases stand, expressly or impliedly, for the

proposition that suspicious circumstances can be relied on where the facts are consistent with fraud: Tyrrell v Painton [1894] P 151 per Lindley LJ; Re Stott [1980] 1 WLR 246; Halliday v Shoesmith [1993] 1 WLR 1; McKinnon v Voigt [1998] 3 VR 531. The following cases are equivocal: Robertson v Smith [1998] 4 VR 165 at 173–4; Roos v Karpenkow (1998) 71 SASR 497 at 506 per Doyle CJ. In Ramcoomarsingh v Administrator General (Trinidad and Tobago) [2002] All ER (D) 259 (Dec); [2002] UKPC 67: … the core question [was] whether it has been shown that there was or was not undue influence by the appellant over [the testator] to persuade him to leave the estate to the appellant subject to a life interest to his sister: at para [26]; judgment of the Judicial Committee delivered by Lord Slynn of Hadley.

It is noteworthy that Lord Slynn analysed the question of the validity of the will using the doctrine of suspicious circumstances, without stating or implying any requirement that where the substance of the allegation is undue influence, the undue influence must be specifically alleged and proved. 9. If the suspicions of the court are not allayed, total or partial invalidity of the propounded will results. See generally Vernon v Watson [2002] NSWSC 600; BC200203703; Daulizio v Trust Company of Australia [2005] VSCA 215; BC200506376, Chernov, Nettle JJA and Hollingworth AJA; Burnside v Mulgrew [2007] NSWSC 550; BC200705870, Brereton J. [page 8] Note that in the seminal case on the doctrine of suspicious circumstances, Nock v Austin, the court determined that the solicitor will draftsperson, also being the main beneficiary, had dispelled the suspicion, but only after the evidence as to the testator’s capacity and as to his knowledge and approval of the will was minutely given, and was tested by the most searching cross examination (per Barton and Gavan Duffy JJ).

The court can strike down testamentary provisions on the ground that the beneficiary has been guilty of unconscionable conduct: Diprose v Louth (No 2) (1990) 54 SASR 450; affirmed Louth v Diprose (1992) 175 CLR 621; (1992) 110 ALR 1. In Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; BC200905954, Young JA (at [89]) said: In a probate suit, the vital evidence is very often not given by medical experts, but it is given by lay observers. I have said more than once in deciding probate cases at first instance, that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes.

Solicitors should not rely on the presumption of due execution when taking instructions for a will. The solicitor may or may not make some observation during the course of taking instructions from the testator which causes him or her to take extra care. Detailed file notes should be kept which record the instructions taken to prepare the will and the procedure followed at the time of execution of the will so that the solicitor is in a position to provide evidence as to the testator’s knowledge and approval of the contents of the will if required to do so. If a solicitor is asked to give evidence in a contested probate suit as to the testator’s knowledge and approval of the contents of the will, evidence to the effect that the will was handed to the testator to read may not be enough. If there is a contested probate suit, the court will ask the solicitor to give an affidavit. In the circumstance described, at best the solicitor in the affidavit will only be able to say ‘I handed the will to the client and she appeared to read it and understand it’. The problem is that the witness cannot give evidence of what the will maker understood and the last part of the statement will not be admissible. The witness can only give evidence of his or her observations. If a witness gives a statement to the effect that the will maker ‘understood’ the effect of a document, the affidavit draftsman (and later the court) will ask ‘How do you know that?’

The client should be asked to read the will aloud and after the reading the client should be asked to state the gifts which he or she has made in the will and the responses should be recorded. On the importance of asking the testator to read out the provisions of the will, see Dellios v Dellios [2012] NSWSC 868; BC2012056663 and Windeyer AJ in Coates v Wattson; Estate of Sullivan [2013] NSWSC 604; BC201302593 at [18].

Pressure on testator; interviewing client in presence of another person 1.10 Mere pressure by a person on a testator does not amount to undue influence unless the pressure ‘overpowers the volition without convincing the judgment’ (Hall v Hall (1868) 1 P & D 481); that is, the pressure amounts to coercion: Wingrove [page 9] v Wingrove (1886) 11 PD 81. However, pressure by one person on another (for instance, one spouse on the other), although not amounting to undue influence, may undermine the taking of instructions to the extent that the court may not be satisfied that the will was made by a free and competent testator, if the doctrine of suspicious circumstances is applied. The solicitor should bear in mind that one of two spouses or partners may have pressured the other into making a will in her or his favour. If this has happened, the solicitor will probably not discover it during the interview; however, the solicitor can and should (unless mutual wills have been made: see Chapter 33) tell the clients that either is free at any time to revoke her or his will and make a new will in completely different terms without consulting or informing the other. The solicitor should also tell the clients that if one of them, for example A, does decide to make a new will without informing the

other (B), and then A tells you about her or his intention, your ethical duty will prevent you from drafting the new will for A, and further, will require you to tell the other testator (B) of A’s intentions. If the solicitor suspects that one of the spouses or partners might be pressuring the other, the solicitor should see them separately, and if the solicitor’s suspicions are not completely set at rest the solicitor should not continue to act for them as it is possible that their interests and intentions diverge and conflict. The solicitor should advise them to consult different legal advisers separately, and should not continue to act for either of them. A similar difficulty can arise if the testator is accompanied by another person who is going to be a major beneficiary (especially a disproportionate beneficiary) — for instance, where an elderly testator is being ‘helped’ by the testator’s child to make a will. In all these cases the solicitor should, as well as informing the testator of the power to revoke, encourage the testator to speak with the drafting solicitor in the absence of the other person. Where a friend brings the testator into the solicitor’s office, especially if the testator indicates that the friend is to be a major beneficiary, the testator must be seen alone. This is particularly true if the will is made when the testator is under stress: WoodleyPage v Simmons (1987) 217 ALR 25; BC8701133 (SC (NSW), Probate Division, Young J) (in this case, the testator’s wife had just died). Where instructions are taken from a testator in the presence of another person who is to be a beneficiary, a good policy is, at the end of the interview at least, to ask the other person to leave the room and to have a short interview with the client alone. This gives the solicitor an opportunity to assess the relationship and to hear any private concerns of the testator.1

Testamentary capacity; should solicitor draft will where solicitor doubts capacity?

1.11 A will cannot be valid unless the testator has testamentary capacity. It follows that during the first interview with the client whose will is to be drafted, the will drafter should satisfy herself or himself that the testator has capacity. [page 10] Where there is doubt, the will drafter should draft the will anyway, and collect as much factual evidence as possible in the form of medical evidence and statements by the testator so that the issue of capacity can be decided when probate of the will is sought: see [1.14]. Refusing to draft the will where there is doubt about capacity may deprive a competent testator of the opportunity to make a will: see [1.14] points 7, 8. Alternatively, if the testator probably lacks capacity, the will drafter could, in jurisdictions which allow it, consider applying for an order that a statutory will be made: see [1.15] below.

Age and testamentary capacity 1.12 The testator must have reached the age of 18 years to make a valid will, although there are statutory provisions enabling minors to make wills: see [31.17] ff. There is no maximum age for testamentary capacity: Bailey v Bailey (1924) 34 CLR 558.

Testamentary capacity: soundness of mind, memory and understanding 1.13 The requirements for testamentary capacity necessary to establish the power of testation were laid down by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, and are well established. The principles are: It is essential to the exercise of such a power that a testator:

shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, – that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made: at 565 [formatting added]. If any one of these aspects of capacity is defective, and the defect affects the will and leads to a disposition which would not have been made if the mind had been sound, the will is wholly void: Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267. See also Bull v Fulton (1942) 66 CLR 295. Modern cases apply the Banks v Goodfellow principles: see, for example, Astridge v Pepper [1970] 1 NSWR 542; Jee v Goodman [2001] QSC 474; BC200108007 per Holmes J; Challen v Pitt [2004] QSC 365; BC200407017; Scattini v Matters [2004] QSC 459; BC200409184; Public Trustee v Eastwood [2006] NSWSC 819; BC200606431; Tu v Tu [2008] NSWSC 458; BC200803884; d’Apice v Gutkovich — Estate of Abraham (No 2) [2010] NSWSC 1333; BC201008738; Gray v Hart [2012] NSWSC 1435; BC201210602; Dickman v Holley; Estate of Simpson [2013] NSWSC 18; BC201300224; Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934; BC201507207. [page 11] The fact that the testator is suffering from a degenerative disease such as Alzheimer’s at the time the will is made does not

necessarily result in incapacity; the court will still apply the tests in Banks v Goodfellow (1870) LR 5 QB 549: Martin v Fletcher [2003] WASC 59, BC200301168. A valid will may be made while a testator is under a financial management or guardianship order, although the propounder of the will must affirmatively prove knowledge and approval (by the most detailed solicitor’s evidence) and testamentary capacity (by the most detailed contemporaneous medical evidence): see Gray v Hart. In South Australia, Aged and Infirm Persons Property Act 1940 (SA) s 29 permits the financial manager to apply to the court for a direction that the protected person may only make testamentary dispositions after complying with such conditions as the court determined and failure to comply with those conditions renders the act ineffectual. Guardianship and Administration Act 1993 (SA) s 56(1) permits the Guardianship Board to make similar directions. See further [1.15]. Unfair or extreme values do not demonstrate a lack of capacity, particularly when the testator has ensured that he or she received regular medical certificates attesting to her or his capacity and lucidity: Di Cecco v Contini [2004] VSC 211; BC200403486. The fact that the testator commits suicide does not demonstrate lack of capacity: Re Hodges (1988) 14 NSWLR 698; Estate of Vauk (1986) 41 SASR 242; Phillpot v Olney [2004] NSWSC 592; BC200404327; Schlesinger v Bowman [2007] TASSC 57; BC200706335. Where a testator has capacity at the time of giving instructions for a will, and the will is drawn up according to those instructions and signed by the testator on a later date, a lesser degree of capacity can suffice at the time of signing: Perera v Perera [1901] AC 354 at 361; Clancy v Clancy [2003] EWHC Ch 1885 (UK High Court, Chancery Div, Rimer J, 31 July 2003); and see RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, LBC Information Services, Sydney, 1996, [5.07]. Cf Bailey v Bailey (1924) 34 CLR 558 at 572 per Isaacs J.

Justice Isaacs’ statement of the principle (in his point 12) does not appear to be in full accord with the authorities he cites. See generally on capacity: RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, [5.03]ff; Mason and Handler: Succession Law and Practice New South Wales (Handler & Neal), looseleaf, LexisNexis Butterworths, Sydney, [1017.3, 13,045]; AA Preece, Lee’s Manual of Queensland Succession Law, 6th ed, Lawbook Co, Sydney, 2007, [3.10]; IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New Zealand, [306]; R Croucher and P Vines, Succession: Families, Property and Death, 4th ed, LexisNexis Butterworths, Sydney, 2013, Ch 6; I Freckelton, ‘Bipolar Disorders and the Law’ (2005) 13(2) Journal of Law and Medicine 153–63, Westlaw AU, accessed 15 July 2016; D Mendelson, ‘Assessment of Competency: A Primer’ (2006) 14(2) Journal of Law and Medicine 156–66.

Solicitor’s duties in relation to capacity 1.14 The drafting solicitor is subject to a range of duties in relation to capacity. First, it is vital that the client should be seen personally: see [1.6]. [page 12] 1.

2.

The will draftsperson should never assume that the testator has capacity: Estate of Tucker [1962] SASR 99 at 101 per Mayo J. If there is doubt about capacity, provided the solicitor is satisfied that the client is capable of giving instructions as to the preparation of the will, it may be safer to make a codicil to an existing will which was made when capacity was certain than to make a new, revoking, will: see Chapter 32.

3.

If the solicitor doubts the testator’s capacity, the solicitor should not lightly deprive the testator of the right to make a will by refusing to draft it. Reid Mortensen says: The solicitor will still be obliged to prepare a will if an incapacitated, but relatively coherent, client insists it be prepared; although it is likely that the solicitor could not be held liable to beneficiaries of that will if a court later refused to grant it probate on the ground of incapacity: ‘Solicitors’ Will Making Duties’ (2002) 26 Melbourne UL Rev 60 at 63.

It is not part of the duty of a solicitor to ensure that the testator has capacity and to refuse to draft the will if the solicitor is not satisfied that the testator does have capacity. Henry J said in Knox v Till [1999] NZCA 252/98; [1999] 2 NZLR 753, Keith and Pipping JJ agreeing: Whether or not a person has testamentary capacity is outside the area of a solicitor’s professional expertise. The issue cannot be likened to preparing a will which gives effect to the testator’s intentions, and to ensuring it is duly and timeously executed according to law. The implications of the claimed duty are also relevant. What kind of steps are to be undertaken? What right has the solicitor to obtain information which may be confidential to the client? We are therefore not persuaded that policy justifies the imposition of the claimed duty.

4.

5.

Knox v Till was applied in the New Zealand High Court in Public Trustee v Till [2001] 2 NZLR 508. Instructions taken by a will draftsperson, particularly from a sick or enfeebled testator, should be detailed, so that the testator can be advised as to the effect of each part of the instructions and so that the drafter can at any time justify what he or she has done by reference to the instructions: McLaren v McLaren [1919] NZGLR 287 at 297. Where the solicitor is drafting a will and there is any possibility that the testator’s capacity might later be questioned, the solicitor should ask open or non-leading questions the answers to which will establish whether or not each of the requirements for capacity laid down in Banks v Goodfellow is satisfied. It follows that the solicitor taking

instructions for a will must have the Banks v Goodfellow tests (see [1.13]) at the front of her or his mind. The notes made by the solicitor of the questions and the testator’s answers should be factual, so that a court considering the matter can decide for itself whether, in the light of the questions and answers, the testator had each [page 13] required element of capacity. It is not satisfactory for the solicitor to note: ‘I asked the testator a number of questions and satisfied myself that the testator had capacity.’ It is for the court to decide capacity on the basis of facts which establish the presence or absence of the requirements for capacity: see, for example, Bailey v Bailey (1924) 34 CLR 558 (HC) at 572 [10]–[11] per Isaacs J: The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue … While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.

6.

7.

Information about the age, occupation and mental health of the intending testator are relevant: Estate of Tucker at 102 per Mayo J. Where capacity may later be called in question, the people whose evidence will be of particular value are the testator’s medical and nursing attendants and the testator’s solicitor — Nicholson v Knaggs [2009] VSC 64; BC200900993 at [39] per Vickery J; cited with approval in Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934; BC201507207 and numerous other judgments. Statutory declarations sworn by these people at the time when the will is executed, alleging facts from which capacity can be inferred

rather than merely asserting that the testator has capacity, will be helpful when the will comes to be proved. If capacity is in doubt, particularly if the testator is sick or enfeebled, the will drafter should ensure the presence of a doctor so that: … the making of the will [can] be witnessed and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings: Re Simpson (1977) 121 Sol Jo 224.

The solicitor should explain the tests in Banks v Goodfellow to the medical attendants, so that they know the criteria to apply. In Kantor v Vosahlo [2004] VSCA 235, Buchanan and Phillips JJA observed that the evidence of a medical professional as to the testator’s state of mind is most useful when prepared at the time that the will is made. Inferences and inductions provided to the court based on the state of mind of the testator on days before or after the will was made are of limited utility. For this reason care should be taken to have a medical professional present at the critical time that the will is read, and signed, even where the testator is receiving regular medical attention. White J in O’Connell v Shortland (1989) 51 SASR 337 at 348 accepted that: Old age, or the near approach of death at any age, lend strength to suggestions that the testator had no proper knowledge of the contents of the will, or that there was undue influence, or the suspicion arising from the fact that the will is largely in favour of the person drawing or procuring it. A desirable safeguard in such circumstances is for the will to be

[page 14] witnessed by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examinations and findings: quoting from CH Sherrin, RFD Barlow and RA Wallington, Williams on Wills, 6th ed, Butterworths, London, 1987, vol 1, p 31.

White J criticised a solicitor who had not persisted in trying to

8.

get a medical practitioner to be a witness to a will where the testator’s capacity was in doubt; he also criticised the medical practitioner for having avoided being a witness because he did not want to become involved. A sick person cannot be relied on to read a legal document. The will draftsperson should read the draft will to the testator (McLaren v McLaren [1919] NZGLR 287 at 297) and, it might be added, the will drafter should explain the document to the testator and note her or his reactions to it: Astridge v Pepper [1970] 1 NSWR 542. In Robinson v Spratt [2002] NSWSC 426 (SC (NSW), 16 May 2002, Windeyer J) the court said in the context of a testator who was showing signs which put capacity in doubt: … a solicitor who just gives a will to a testator to read and some minutes later asks whether that is what is required can get little comfort from an affirmative answer. I continue to hold the view that wills should be read out loud to testators with pauses to explain the terms during the reading to ascertain that those terms are understood by the testator and carry out his or her intentions.

In a similar vein, in Coates v Wattson; Estate of Sullivan [2013] NSWSC 604; BC201302593 at [18], Windeyer AJ said: … it is quite inappropriate for a solicitor to attend a lady in a nursing home, to give her a will, tell her to read it, and then ask if that’s what she wanted, when normally she will say, ‘Yes dear.’ All that is evidence of is that she said, ‘Yes dear.’ It is no evidence whatsoever that the deceased knew what was in the will. The will should be read aloud and explained.

9.

Sometimes the testator herself or himself may doubt her or his own capacity. This can happen where, for instance, the client has had a cerebral accident and perhaps cannot speak. The testator may well have capacity and know her or his testamentary desires and wishes quite clearly and logically. The solicitor who takes the time and trouble to reassure the testator and to elicit those wishes and intentions and embody them in a will, is doing an act of great kindness which will be much appreciated by the testator and the family. 10. Where it is clear that the testator lacks capacity, the possibility of making a statutory will should be borne in mind: see

[1.15]. South Australia makes statutory provision for a will made by a ‘protected person’: see [1.16]. Mr Justice Adam is reported to have made the following valuable general comments at a meeting of the Medico-Legal Society of Victoria on the subject of capacity to make a will: [page 15] Mr Justice Adam said he had tried several of these cases, and that he had found the natural starting point to be the will itself. Did it speak to reason? If it did, its supporter was one step ahead, despite any medical evidence that may come. The second point was: what had the solicitor who prepared the will done? Had he troubled to ask the elementary questions concerning the testator’s property, relatives, etc. If the solicitor took the trouble to ask these questions, there was rarely any difficulty for the Judge. His Honour said he did rely on medical opinions as to capacity, though with a general practitioner he would test him to see what he considered the proper tests of capacity. Whether the witness was a general practitioner or a specialist, his Honour would always probe the things on which the opinion was based. His Honour said the late Dr Godfrey used to be asked to listen to the evidence in Court, and then express his opinion. His Honour saw no objection to this: Proceedings of the Medico-Legal Society of Victoria, vol 9, 1960–63, p 123.

On the solicitor’s duties in relation to capacity, see IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New Zealand, [306] and A Practical Guide for Solicitors: When a Client’s Capacity Is in Doubt, Law Society of NSW, 2009, , accessed 29 April 2016.

Wills for persons without testamentary capacity 1.15 All Australian jurisdictions have provisions enabling the court to make a will for persons lacking testamentary capacity.2 In Tasmania, the Guardianship and Administration Board is also able

to make a statutory will for persons lacking testamentary capacity.3 Section 18 of the Succession Act 2006 (NSW) is an example. It provides: 18 Court may authorise a will to be made, altered or revoked for a person without testamentary capacity (1) The Court may, on application by any person, make an order authorising: (a) a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or (b) a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity. Note. A person may only make an application for an order if the person has obtained the leave of the court — see section 19. (2) An order under this section may authorise: (a) the making or alteration of a will that deals with the whole or part of the property of the person who lacks testamentary capacity, or (b) the alteration of part only of the will of the person.

[page 16] (3) The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made. (4) The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity. (5) In making an order, the Court may give any necessary related orders or directions. Note. The power of the Court to make orders includes a power to make orders on such terms and conditions as the Court thinks fit — see section 86 of the Civil Procedure Act 2005. The Court also has extensive powers to make directions under sections 61 and 62 of that Act. (6) A will that is authorised to be made or altered by an order under this section must be deposited with the Registrar under Part 2.5. (7) A failure to comply with subsection (6) does not affect the validity of the will.

Among other things, the court on hearing of the application must satisfy itself as to the terms of the proposed will. The level of satisfaction which the court is required to reach varies across

jurisdictions. In the Australian Capital Territory, New South Wales and Tasmania the court must be satisfied that the proposed will is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity.4 In Western Australia the court must be satisfied that the proposed will is one which could have been made by the person.5 In Victoria, following amendments commencing on 1 January 2015, the court must be satisfied that the proposed will reflects what the intentions of the person would be likely to be or what the intentions of the person might reasonably be expected to be.6 In Queensland the court must be satisfied that the proposed will is one which the person would make.7 In the Northern Territory the court must be satisfied that the proposed will is or might be one which would have been made by the person.8

South Australia’s provisions are restrictive 1.16 Section 7(3) of the Wills Act 1936 (SA) is restrictive. It provides: 7(3) Before making an order under this section, the Court must be satisfied that — (a) the person lacks testamentary capacity; and (b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and (c) it is reasonable in all the circumstances that the order should be made.

[page 17] The terms of s 7(3)(b) are crucial. Its wording is virtually the same as that of s 26(b) of the Wills Act 1997 (Vic) as it stood until its amendment in 2007 and its subsequent amendment in 2015. (In its pre-2007 form, the Victorian s 26(b) read: 26(b) the proposed will or revocation accurately reflects the likely intentions of the person, if he or she had testamentary capacity.)

The restrictiveness of the old Victorian s 26(b) was commented

on in a number of cases. The leading decision is Boulton v Sanders (2004) 9 VR 495; [2004] VSCA 112, BC200403477; see too Plowright v Burge [2005] VSC 490, BC200600888. A will for a person without capacity was authorised in Public Trustee v Phillips [2004] SASC 142, BC200403089. In South Australia s 56(1) of the Guardianship and Administration Act 1993 allows the Guardianship Board to direct that testamentary provisions by a protected person be made only after compliance with such precautions as the Board thinks fit to direct; and s 29(1) of the Aged and Infirm Persons’ Property Act 1940 empowers the court to direct that the precautions it thinks fit be observed, on pain of invalidity: Hunter v McKinnon (2002) 81 SASR 229; [2002] SASC 13. Although the legislation across the jurisdictions does not limit the circumstances in which applications can be made, the provisions relating to court authorised wills should not be used to conduct contested probate proceedings during a person’s lifetime where there are competing wills. In New South Wales, circumstances in which the court has made an order include: where there might have been an intestacy and there was a possibility that assets would pass to the Crown bona vacantia: Crawley; Re Estate of [2010] NSWSC 618; BC2010003849; Re Fenwick: Application of JR Fenwick (2009) 76 NSWLR 22; [2009] NSWSC 530; in circumstances of domestic violence: Application by Peter Leslie Kelso [2010] NSWSC 357; and in the case of court authorised wills for a minor, where the minor had an irreversible brain injury suspected to have been caused by the minor’s parents who would inherit on intestacy: Re Charles (heard with Re Fenwick and determined in the same judgment). Whether the consent of all interested parties would assist in a statutory will application is a matter of debate. The power to make a statutory will is not a consent jurisdiction, but consent of all interested parties to resolve a family controversy can be considered. Compare Re RB, a Protected Estate Family Settlement [2015] NSWSC 70; BC201500589 and Re Lukic [2015] NSWSC 822; BC201506579.

Concealed will; order to produce will; right to inspect will 1.17 The statutes in most jurisdictions give the court the power to order production of testamentary documents.9 [page 18] Statutes in most jurisdictions also give a wide range of persons, including potential beneficiaries and creditors, the right to inspect a person’s will (including revoked wills and documents purporting to be wills) after a person’s death.10 Where a will is held by a solicitor, the rights of inspection given by statute are not dependent on the solicitor obtaining instructions from the executors before releasing the document to the requesting person.

1. 2.

Personal communication from Janet Burton. ACT: Wills Act 1968 ss 16A–16I; NSW: Succession Act 2006 ss 18–26; NT: Wills Act 2000 ss 19–26; Qld: Succession Act 1981 ss 21–28; SA: Wills Act 1936 s 7 and see Aged and Infirm Persons’ Property Act 1940 (SA) ss 7, 11, 29; Tas: Wills Act 2008 ss 21–28; 39–41; Vic: Wills Act 1997 ss 21–30; WA: Wills Act 1970 ss 39–48.

3. 4.

Tas: Wills Act 2008 ss 29–41. ACT: Wills Act 1969 s 16E(b); NSW: Succession Act 2006 s 22(b); Tas: Wills Act 2008 s 24(e).

5. 6.

WA: Wills Act 1970 s 42(1)(b). Vic: Wills Act 1997 s 21B(b).

7. 8.

Qld: Succession Act 1981 s 24(d). NT: Wills Act 2000 s 21(b).

9.

ACT: Court Procedure Rules 2006 r 3111, and see r 3115(1)(c); NSW: Probate and Administration Act 1898 s 150 or alternatively Succession Act 2006 s 54(3); NT: Administration and Probate Act s 147. Qld: Section 6 of the Succession Act 1981 and not s 52 is the proper provision under which a court can order a person to produce and bring into the Registry the will of a deceased person: Re Bray [1989] 2 Qd R 398; SA: Administration and Probate Act 1919 s 25; Tas: Administration and Probate Act 1935 s 67 and Sch 3(3); Vic: Administration and Probate Act 1958 s 15. WA: Rules of the Supreme Court 1971 O 73 r 20.

NSW: Succession Act 2006 s 54; NT: Wills Act 2000 s 54; Qld: Succession Act 1981 s 10. 33Z; Tas: Wills Act 2008 s 63; Vic: Wills Act 1997 s 50.

[page 19]

Chapter 2 DRAFTING A WILL USING THESE PRECEDENTS; TAKING INSTRUCTIONS AND STRUCTURING A WILL Introductory Notes General comments; codicils; urgency; death before will executed Learning will drafting; general considerations — understanding testator’s affairs 2.1 Drafting wills is a learned, practised skill — but it has to be learned very fast, as there is little scope for error. The underlying difficulty is that once the will has been prepared, executed and filed in safe custody, there is little likelihood that any errors it might contain will be discovered until after the testator’s death, when it is too late to correct them. So from the very first will you draft you must make every effort to work to the highest standards, giving time and thought to every will, getting advice from experienced people and ‘getting your act together’. Keep the will simple. Do not ‘try to deal in a different way with every contingency’: Re Clifford (1979) 22 SASR 353. The prepared original will, ready for execution (signing by

testator and witnesses), should be clean, with no errors or corrections. It is generally better to prepare a new document incorporating the corrections than to execute a document with corrections. The formalities required for a valid will are set out in [2.75]ff. If you do have to make corrections, make sure they are properly executed. A legal adviser with a detailed knowledge of a testator’s affairs, derived from either long association or frankness on the testator’s part, is in the best position to draft a proper will. Mayo J said in Estate of Tucker [1962] SASR 99 at 101: ‘the person taking instructions should have the full confidence of the intending testator. Only then can frank instructions be obtained, instructions that are full and ample.’ Not often does the will draftsperson have these advantages. Many well-to-do testators have an array of family companies and trusts. No will can be drawn for such a testator without relating the will to the constitutions of these companies, and the relevant trust deeds, to create a coordinated estate plan of which the will is a part. A valuable book on drafting deserves mention: J Kessler and M Flynn, Drafting Trusts and Will Trusts in Australia, Lawbook Co, Sydney, 2008. [page 20]

Urgency; liability in negligence for delay 2.2 Wills are always urgent because it can never be certain that the testator will survive from the time of contacting the will draftsperson until instructions are given, and again from the time of giving instructions until the will is prepared for execution and formally executed. If the will draftsperson is aware of particular urgency (for instance, if the client is ill or elderly) and delays

taking instructions, he or she may be liable in negligence. If the will draftsperson has taken instructions, he or she must draft the will promptly or, again, liability in negligence may follow: see Gartside v Sheffield, Young and Ellis [1983] NZLR 37 (Court of Appeal); White v Jones [1995] 2 AC 207 (HL); Maestrale v Aspite (2012) 9 ASTLR 575; [2012] NSWSC 1420 (damages varied on appeal — Maestrale v Aspite [2014] NSWCA 182; BC201404421); and Fischer v Howe (2013) 85 NSWLR 67; [2013] NSWSC 462 (overturned on appeal — Howe v Fischer [2014] NSWCA 286). In White v Jones a client gave instructions for an important change to his will. The solicitor did not bring about the required change to the will and, two months after giving the instructions, the testator suffered an accident and died. The disappointed beneficiaries’ claim in negligence against the solicitor was successful. See further on professional negligence and related matters: [2.72]–[2.73], [31.29]; R Mortensen, ‘Solicitor’s Will Making Duties’ (2002) 26 Melbourne UL Rev 60 at 64. In Maestrale v Aspite, a solicitor was asked by an existing client to see his father who was in hospital suffering from acute leukaemia. A meeting was held in a café. The evidence was that at the meeting instructions were given for the preparation of a will, but that the solicitor did not prepare the will for seven days and further, that the solicitor ignored a number of phone calls and voicemail messages from the prospective beneficiary. The solicitor did ultimately prepare a will, but the testator died before the will was executed. At first instance (in Maestrale v Aspite (2012) 9 ASTLR 575; [2012] NSWSC 1420), Fullerton J determined that the solicitor was negligent in failing to respond to the beneficiary’s telephone messages seeking urgent attention. The beneficiary appealed against the award of damages and costs orders made by the primary judge against the solicitor. In Maestrale v Aspite [2014] NSWCA 182; BC201404421 and Maestrale v Apsite (No 2) [2014] NSWCA 302; BC201407233, Beazley P, with whom Barrett and Macfarlan JJA agreed, set aside Fullerton J’s award of damages and costs order, instead increasing the judgment sum payable to the

beneficiary and ordering that the solicitor pay the beneficiary’s costs at trial and on appeal. In Howe v Fischer, a solicitor took instructions for the preparation of a will at the client’s home. The solicitor’s evidence was that to his observation the client was in relatively good health, although he was told that she was physically frail and he knew that her son was 73 years old and that her daughter was 72. The client’s instructions included a complete disposition of her estate but she had not decided on whom she wished to appoint as her executor. The client did not say who benefited from her previous will and she could not provide a copy of it. The solicitor gave family provision advice. At the conclusion of the conference the solicitor informed the client that he would be away over Easter and he asked her whether he could attend on her with the will after his return. The client agreed. [page 21] The client died before the will was executed and the prospective beneficiaries sued the solicitor in negligence. At first instance (Fischer v Howe (2013) 85 NSWLR 67; [2013] NSWSC 462), Adamson J determined that the duty of care owed by a solicitor to intended beneficiaries extends to the means by which a solicitor can ensure that a testator’s wishes are carried out. On appeal, Barrett JA, with whom Beazley P and Macfarlan JA agreed, held that the primary judge erred in finding the client had a settled testamentary intention when she gave instructions for her will to be made and also erred in holding the solicitor was responsible for the delay in preparing the formal will. Allowing the appeal, their Honours held the solicitor’s retainer was to take reasonable steps to achieve, by the exercise of the care and skill of an ordinary skilled solicitor, preparation of a formal will according to the agreed timeframe (an express obligation) and the avoidance

of any reasonable foreseeable frustration of that objective (an implied obligation). The court found that there was no basis on which the solicitor should have known the client might be expected to die or lose testamentary capacity in the relevant twoweek period, and that the solicitor did not breach his retainer or his duty of care owed to the prospective beneficiaries. The application for special leave to appeal was unsuccessful — see transcript Fischer v Howe [2015] HCASL 35. At the time of taking instructions for a new will, advice should be given that until a formal will is executed the existing testamentary documents will remain valid (or the provisions on intestacy will apply). If the client is anxious to make an immediately effective document, or there is cause for concern about the potential for the client to lose capacity or die, or where the testator wishes to make a dramatic change, the option of making an immediately effective will (with two witnesses where available) should be considered and discussed. But the risks and limitations must be raised in that conversation. An immediate will containing complex structures, such as testamentary discretionary trusts, should not be attempted. The benefits of the client giving the solicitor the opportunity to draft a more formal will should be explained, lest the client decide that a more formal will is not necessary. It should be explained that the solicitor will not have had the opportunity to conduct the usual searches (property and company) or to consider complex aspects (including company and trust assets, by reference to the company constitution and/or trust deed). In the case of an immediate informal will, the cumbersome procedure for obtaining probate of the informal will, which requires notice to be served on the beneficiaries of the prior will (and may invite a contest), should be explained. The fact that the testator has not finally made up her or his mind may protect a dilatory solicitor from liability: Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93; BC200001212.

Death or incapacity of testator before will executed; stopgap or interim will; could instructions for will be probated under dispensing provisions? 2.3 In all Australian jurisdictions the court has the power under dispensing provisions to admit to probate an informal — even unsigned — document: see [31.4]ff. [page 22] The legislation leaves open the possibility that unsigned instructions or the will draftsperson’s draft can be admitted to probate, provided that the deceased intended the document to be her or his will. The evidence of the will draftsperson and other witnesses as to the deceased’s statements at the time the will was made would be critical. In the opinion of the authors of this edition of the text, it would be rare for such a claim to succeed unless there is good evidence as to the deceased’s intention that it operate immediately or until a more formal will was made. Legoe J in Estate of Vauk (1986) 41 SASR 242 at 251 said that, because a draft may well be held to be a will, depending on the testator’s intentions regarding that draft, the solicitor’s duty is to keep a clear record of the testator’s attitudes to the draft and also to the notes of instructions. It is submitted that Justice Legoe’s view cannot be accepted without qualification. Situations that can arise are: The testator intends the instructions to have testamentary force. In this case the solicitor should have those instructions properly executed, as was done in In the Estate of Treloar (1984) 36 SASR 41. The testator may intend not to make a will until the draft is finalised and approved, perhaps because the testator has not yet made up her or his mind. If so, this fact should be noted and

probably the note should be signed by the client. The client should be warned that her or his death before the final document is drafted and executed will lead to a disastrous situation. Solutions 2.4 It is suggested that when a testator gives instructions for a will, the will draftsperson has two good choices: 1. The will draftsperson can prepare a draft will electronically, print it and have it executed by the testator and witnessed ‘on the spot’. This is a good solution, as suggested above, and the executed will would be retained by the solicitor for checking. 2. During the conference at which instructions for a will are taken, the solicitor should ask the client about the provisions of their existing will. At the conclusion of the conference, the solicitor should ask the client whether they wish to make an immediate will pending preparation of a more formal document. The client should be advised that if they choose not to make an immediate will then should they die or lose capacity before a formal will is made, the previous will will continue to operate. In matters where a new will made in accordance with the instructions given at the conference would result in a substantive change to the existing will, the point should be emphasised. If the client wishes to make an immediate will, the will draftsperson can prepare a simple document containing just the basic provisions that the testator wants, and the testator can execute it formally before leaving the office. The will draftsperson will proceed to prepare the final will in the usual way, knowing that if the testator dies unexpectedly there will not be a disaster. If the client does not wish to make an immediate will, the solicitor should [page 23]

record in his or her notes that the client does not wish to make an immediate will and the client should be asked to sign that part of the solicitor’s notes.

Estate Information Manual 2.5 The Estate Information Manual offered in Form 2.04 may be copied and given to the client to fill in. Completion of the Estate Information Manual is useful because: 1. the information gives the draftsperson a complete picture of the client’s affairs, and protects the draftsperson from missing important points; 2. the completed manual makes the ultimate administration of the estate easier, as the client has provided in advance the answers to the questions which are asked in the application for probate; and 3. the manual contains a list of assets, which makes the search for assets after the death easier. The Estate Information Manual offered in Form 2.04 is that set out in JK de Groot and SA Karas, Solicitors’ Checklists, Butterworths, Sydney, 1988, p 11.1 (See also C Shuttleworth, Check-Lists for Solicitors, 4th ed, Oyez Longman, London, 1983, pp 70–1.) The testator should keep the completed Estate Information Manual with the testator’s copy of the completed will. For the reasons set out in [1.6], the solicitor must interview the client personally and discuss the client’s responses to the Estate Information Manual with them.

Interviewing client for will Keep adequate file notes 2.6 Keep adequate file notes. Make a note for retention in your file of:

1.

2.

3.

4. 5. 6.

unusual instructions given by the client. You may consider requiring signed instructions from the client in some situations — for instance, if instructions are counter to your advice, or are unusual in some respect, or the testator is authorising you to delay preparing the will; unusual or particular advice given by you on matters such as capital gains tax, family provision, formalities for executing a will unsupervised by a solicitor, or enduring powers of attorney; unusual features of the case — matters such as unusual property; doubt about capacity; age; health, etc; inability to read; and any charging clause (see [11.7]ff) you wish to include in the will; assets, liabilities and nature of the estate; structure of the testator’s family; the fact that you gave the testator a copy of ‘Suggestions to Clients’ (Form 2.06); [page 24]

7. 8.

where the original will is to be kept; and your quotation for costs. Some solicitors prepare a folder of information and a précis of instructions and recommendations, to be signed by the testator and used as the basis of the will. Instructions taken by a will draftsperson should be detailed, particularly from a sick or enfeebled testator, so that the testator can be advised as to the effect of each part of the instructions and so that the draftsperson can at any time justify what he or she has done by reference to the instructions: McLaren v McLaren [1919] NZGLR 287 at 297.

Interviews needed 2.7 You need at least one interview, and usually two, with the testator. The typical course of events for a reasonably straightforward will is as follows: 1. Primary interview. This is the main interview during which the instructions will be taken and the main drafting work done. Further interviews will be supplementary only. During this interview, take instructions, making appropriate notes on your file and drafting the will as you go. Finish drafting the will as soon as possible after the client has left. If possible, execute the will before the client leaves, and check it later. If all is in order, no further interview is needed. 2. Second interview. Go through the document with the client. Ask the client to read the will aloud. Ask the client to state their understanding of the effect of the will. Note changes — particularly, note important or unexpected changes in instructions, or note that the instructions have remained the same. Make the appropriate notes on your file. If all is in order, execute the will. If it is not, take further instructions and redraft the will. 3. Third interview. Go through the document with the client and execute. If the will is difficult or complex, taking instructions and drafting the will may take a lot of time and several interviews, with drafts and redrafts passing between the will draftsperson and the testator, as well as some research by the will draftsperson and also by the testator. Sometimes a specialist will have to be consulted, or counsel’s opinion sought. Never draft a will without interviewing the testator personally: see [1.6].

Purposes of interview 2.8

During the primary interview the solicitor’s questions serve

various purposes. First, the questions are designed to check the testator’s capacity. Second, the questions enable you to gain an understanding of the testator’s family, assets, superannuation, life insurance, liabilities, business, powers of appointment and contractual obligations, including contracts to make or not to revoke a will: see Chapter 33. The decision whether to recommend that the client seek specialist financial planning advice will probably be made during this interview. Third, the questions and the answers given will enable you to decide your strategy — the structure and ‘plan’ of the will (see Forms 2.01 and 2.02), and [page 25] its relationship to the overall financial/estate plan. You will be able to select the appropriate precedents to create the will (see [2.42] and Form 2.03); and you can amend and fill in the blanks in the selected precedents. Clients are not always reliable — they do not know the law, and they may not know what facts are important. Help them formulate and organise their wishes so that as far as possible their will can take a simple, usual structure.2 The most comprehensive way of getting information is by asking the client to fill in a questionnaire asking the questions set out in Estate Information Manual: see [2.5]; Form 2.04. However, this is not always feasible, and facts have to be elicited during the interview. For this reason, and because an expansion on some questions which you should ask the testator may be useful, we offer the following comments in [2.9]–[2.33].

Is there an existing will? 2.9

Ask for it and read it. It may deal with matters that the

testator has overlooked. It tells you things about the testator — and about how other people draft wills! If the existing will is not available, ask the client to tell you what gifts they made in their previous will.

What is testator’s domicile? 2.10 Ask where the testator is domiciled — foreign law may govern the way in which the will applies and its substantial (as opposed to its formal) validity: see the discussion of foreign assets in [2.19], [3.2].

Might testator marry or divorce? 2.11 Even if they have no present intention of marrying, partners in a domestic or personal relationship may well marry at some stage, and people who are divorced or getting divorced often remarry. Consequently, the testator who asserts that he or she has no intention to marry should be warned of revocation by marriage, and, if appropriate, the use of a contemplation of marriage form should be recommended: see Chapter 8. If it is possible that the testator might divorce, a number of matters should be considered: 1. family provision: see Chapter 14; 2. superannuation and life insurance: see Chapter 17; 3. the provisions of any possible property settlement; and 4. whether the will is or is not intended to survive the divorce: see Chapter 8.

Is there a power to appoint a controller, appointor or custodian of family trust; to appoint beneficiaries under a will? Is there a business succession agreement? 2.12 The testator may be the donee of a power of appointment. There are different kinds of powers of appointment. The testator

may have a power to appoint in relation to the controller or appointer of a family discretionary trust; [page 26] or the testator may have been given by the will of another a power to appoint beneficiaries in relation to that will. A power given by the will of another to appoint beneficiaries is comparatively rare. If a power of this kind has been given to the testator, the will draftsperson must read the instrument creating the power carefully to ascertain the property that is subject to the power and, in the case of a special power, who the objects (that is, the persons in whose favour the power of appointment can be exercised) are. The testator should be asked what previous appointments by will or by revocable deed have been made, and whether such appointments are to be confirmed or revoked. A power to appoint in relation to the controller, appointor or custodian of a family discretionary trust is, however, common. Where a business is part of family trust property and the testator wishes to give the control of the business to particular persons, a number of possibilities may be open to the testator (the testator cannot, of course, give the business to beneficiaries directly by will — the trust assets are owned by the trustee, which is often a corporate trustee): the testator may be able to give shares in the corporate trustee by will; the testator may be able to control the directorship of the corporate trustee; or the testator may have the power, given by the trust deed, to appoint a controller, appointor or custodian. For the testator who has this kind of power to appoint by will, and wishes to do so, we offer Form 2.09. See further [21.5], [25.10]. It may be relevant to ensure that the appointee satisfies the ‘family control’

test for the purposes of the trust loss provisions of the Income Tax Assessment Act 1936 (Cth): see Sch 2F.

Is there a contract to leave property by will? 2.13 Is the testator bound by any obligation to leave particular property by will, or to make the will in any particular form? Although they are generally to be avoided, and are not common, such contracts are binding. They are likely to have been entered into when the testator’s marriage was under stress. See generally Chapter 33.

What are the testator’s assets and liabilities? Kinds of assets List of assets and liabilities 2.14

Young J has observed that it is:

… almost universal good practice to ask the testator for a list of his assets and his liabilities, both to see how the will should be drawn and also to make sure that the testator is a competent person because a person, unless he is immensely rich, who does not know what his assets are may give an indication that he is not in a fit state to make a will: Woodley-Page v Simmons (1987) 217 ALR 25 (SC (NSW), BC8701133, Probate Division, Young J).

The information is also relevant to capital gains tax: see Chapter 15. Advise the client to enclose with the copy of the will a list of assets and liabilities to assist the executors and for capital gains tax purposes. Do not attach it to the will. It should be headed: ‘LIST OF ASSETS AND LIABILITIES: THIS LIST IS FOR THE [page 27] ASSISTANCE OF MY EXECUTORS. IT IS NOT INTENDED TO BE

TESTAMENTARY, AND DOES NOT FORM PART OF MY WILL.’ This list is not necessary if a copy of the Estate Information Manual (Form 2.04) is filed with the copy of the will.

Do assets really belong to testator? 2.15 Check the true ownership of assets, especially if they are to be specifically bequeathed — ‘my’ assets may be partnership, company or trust assets which cannot be bequeathed by will: see [20.6]ff. In the case of land, details should be confirmed by conducting a real property search. In the case of companies, shareholding and directorships should be checked by conducting an ASIC search. A copy of the memorandum and articles of association or constitution should be obtained. In the case of trusts, a copy of the trust deed should be obtained. Are assets jointly owned? If the testator dies first, the assets will not form part of the testator’s estate and cannot be given by the testator’s will: see the comments on joint tenancy and tenancy in common in Form 2.06. The testator may have nominated a beneficiary for a life insurance policy. If the nomination remains in force, a gift of the proceeds of the policy in the will is ineffective because the proceeds pass straight to the nominee on the death of the insured and do not form part of the estate: see Chapter 17. A superannuation death benefit may form part of the estate that the testator can dispose of by will, or it may not form part of the estate and the testator will not be able to dispose of it by will. Clients are often surprised to learn that not all the assets which they regard as their own can be dealt with in their wills. Once you explain this to them, they begin to see the will as part of a bigger picture, namely estate planning. Assistance with estate planning helps clients appreciate the value of the advice they are getting. Some Aboriginal testators have special perspectives on property, which have to be borne in mind: see [2.25].

Real property as an asset of testator 2.16 Questions to ask in relation to land include the following: 1. If the testator wishes to make a specific testamentary gift of mortgaged or charged property, how are the debts to be borne? Locke King’s Act will apply unless excluded: see Chapter 23. 2. Where are the testator’s title deeds? 3. Has the testator entered into any contract to buy or sell land, or given or taken an option of purchase; or is the land being resumed? 4. Does the testator actually own the land? See [20.6]ff.

Superannuation, proceeds of life insurance policies and friendly society investments as assets of testator 2.17 It is not always clear from the name of an investment whether it is based on superannuation, life insurance or some other type of investment. In the case of an industry superannuation fund, the rules of the fund pertaining to payment of [page 28] death benefits should be reviewed. In the case of a self-managed superannuation fund, a copy of the super fund trust deed should be obtained. In the case of life insurance policies, a copy of the policy should be obtained. In the case of other investments, the client should be asked to provide documents relevant to them to verify the nature of the investment. Additional detail may be available publicly or online, although solicitors should not rely on their own research as to the nature of the investment if the client is unable to provide a source document. You need to investigate terms such as ‘capital guarantee deposits’ or ‘savings bonds’ so

that you can categorise investments. Superannuation, life insurance and friendly society investments can create a variety of problems: see Chapter 17.

Other assets of testator 2.18 What is the state of investment of the testator’s assets? If shares in a private company are a major asset, you may have to examine the memorandum and articles of the company. On ‘carrying on the business’, see [29.16]ff.

Foreign assets of testator 2.19 If the testator has assets, particularly land, in two different countries, the substantive provisions of the will must be valid and effective, according to the intentions of the testator, under the foreign law, and must not create taxation or succession problems in either country. It is usual to prepare separate wills for the local and for the foreign assets because administrative difficulties occur if the original will is held in one country while there are assets in another country, and those assets have to be distributed: see Forms 3.04A and 3.04B. It is important to appoint separate executors for each of the countries, and to keep their functions and powers separate: see [3.2].

Debts owed to testator; liabilities of testator 2.20 Debts may be owed by or to the testator. The will draftsperson should ask the testator about both: either can affect the form the will takes. Debts owed to testator 2.21 Where debts are due to the testator, should they be forgiven? If the testator instructs that there are no debts owing to him or her, the testator should be asked whether he or she has given family members or other people financial assistance and, if so, whether the testator considers such assistance to be repayable.

The testator’s responses should be recorded in the solicitor’s file notes and if the testator does not consider financial assistance to be recoverable, a clause be inserted to that effect. See Chapter 16. Debts owed by testator 2.22 The will draftsperson needs to know whether the testator’s debts are significant, and whether special arrangements for their payment are required. 1. The liabilities need not be accurately ascertained unless they are relevant to the dispositions of the will. The liabilities are usually not relevant if the estate is solvent and the estate or the residue is being divided between beneficiaries. [page 29] If an asset which is mortgaged or charged with a debt is being given as a specific gift to one or more beneficiaries (as opposed to being part of the residue), it is important to know whether the testator wishes the burden of the debt to fall on the beneficiary receiving the asset, or on the estate as a whole: see Chapter 23. 2. Should there be a special fund for payment of debts? Such a fund is useful to speed up distribution of the residue: see Form 29.01(1)(u). Particular directions may be required if special funds for payment of debts are to be created or if life insurance policy moneys are to be made available for this purpose. Life policies are protected by statute against creditors, and care should be taken not to remove the protection thoughtlessly: see [17.3]. Sometimes much of the information about debts owed by or to the testator is unnecessary, especially if the will is simple. However, the testator’s affairs may be in a disorganised state which will create hardship and difficulty for the testator and her

or his family during life, and for the executors and beneficiaries on death. The will draftsperson should gain sufficient information from the intending testator to make preliminary suggestions to the client and to recommend specialist financial planning advice if necessary: see further [1.2] and Chapter 15.

Who are going to be beneficiaries? Will people be disappointed by the will? Are there any moral obligations to particular persons? 2.23 Does the testator owe any moral obligation to benefit a person whom he or she does not wish to benefit? If the testator does not heed these moral obligations, a family provision claim might be made on the estate: see Chapter 14. In an extreme case, where the testator’s behaviour suggests an inability to appreciate the moral claims upon her or him, the testator’s capacity may be in doubt: see [1.2], [1.13]ff.

Family members; relationships 2.24 What is each person’s precise relationship to the testator — for example, child, foster child, adopted child, stepchild or exnuptial child, whether of the testator or of the testator’s child or sibling? Are there any ambiguities — for example, do two people have the same name? Vagueness is a difficulty. For example, the testator may use the word ‘children’ to include foster children or stepchildren; however, they will be excluded if the will itself simply benefits the testator’s ‘children’. Words like ‘parents’, ‘grandchildren’, ‘sisters’ and ‘brothers’ may also bear unusual meanings for the testator. ‘Stepchild’ in particular does not have a clear meaning. In the context of entitlement to claim family provision, it was held in Re Burt [1988] 1 Qd R 23 (FC), followed in Re Monckton [1996] 2 Qd R 174, and Connors v Tasmanian Trustees Ltd (1996) 6 Tas R 267, that the relationship of stepchild/stepparent ceases to exist on the termination by death or divorce of the marriage between the persons whose marriage

created the relationship in the first place. See further AA Preece, Lee’s Manual of Queensland Succession Law, 6th ed, Lawbook Co, Sydney, 2007, [13.60]; Re John [2000] 2 Qd R 323; K Mackie, ‘Stepchildren and Succession’ (1997) 16 U Tas L Rev 22. Section 40A of the Succession Act 1981 (Qld) now gives a more generous definition of ‘stepchild’. [page 30] A partner in a relationship where the partners are not married to each other is not the stepparent of a child of the other partner. In investigating the testator’s family, you should find out who might be entitled to make a family provision claim against the testator’s estate. You should have in your own mind the categories of persons who in your jurisdiction are entitled to claim family provision. In any case, you should find out whether there are any people bearing the following relationships to the testator and, if necessary, whether they have any prospect of claiming family provision. Not all the categories are relevant in every jurisdiction or to every testator: 1. spouse or former spouse; 2. partner or former partner (including same sex partner); 3. children, whether born in or out of marriage; 4. legally adopted children; 5. foster children; 6. stepchildren; 7. children of the testator’s partner; 8. testator’s siblings; 9. testator’s parents; 10. dependent members of the testator’s household; and 11. persons living with and providing domestic support and

personal care for the testator, but not for fee or reward. This is not a complete list of all the persons who might be eligible to claim family provision. In particular jurisdictions other persons may be eligible claimants: see further Chapter 14. The considerations which are relevant and the principles which are to be applied where the testator intends to disinherit possible family provision claimants are considered in Chapter 14. Aboriginal testators 2.25 Aboriginal clients may attach customary meaning to terms of kinship. ‘Mother’, ‘father’, ‘auntie’ and even ‘children’ may not have the meaning they bear in legal or common language. The testator’s intentions must be understood, and beneficiaries should be specifically named if it is appropriate to do so. Indigenous perspectives on property may not accord with common law ideas. An individual may own real property which can be disposed of by will in the usual way, native title property which cannot be dealt with by will, and ritual objects which must be distributed according to customary laws or kinship rules. There may also be items such as artworks founded on ritual knowledge, which may require the use of gifts with conditions attached or even the use of secret or half secret trusts. It is therefore important to discuss with an indigenous client the gifts which he or she wishes to make, and the obligations which he or she must meet under customary law. See P Vines, ‘Making Wills for Aboriginal People in NSW’ (2011) 49(8) NSW Law Society Journal 72. [page 31]

Blended (or ‘melded’) families 2.26 In this context a blended (or melded) family is one in which the testator presently has a spouse or partner, and also has children from another relationship. Particular dangers must be

guarded against in drafting a will for a spouse or partner in a blended family. If the testator leaves the whole estate, or the great bulk of the estate, to the present partner and leaves little or nothing to the testator’s children from the prior relationship, the client must be advised that the present partner is not obliged to leave any part of his or her estate to the children. The surviving present partner may inherit the estate of the testator and then live a long time and perhaps remarry and have further children. Drafting for a testator in a blended family is discussed in [9.11]ff. Some principles which are relevant to a testator who may be inclined to give to a surviving spouse or partner (or ex spouse or partner) less than he or she should in all the circumstances receive are set out in [14.4].

Gifts to persons who receive or might receive social security/Centrelink benefits 2.27 The will should not accidentally reduce or remove pension or benefit entitlements. Ask the testator whether potential beneficiaries receive or might in future receive Centrelink or Veterans’ Affairs benefits. Gifts and trusts benefiting a person may reduce or eliminate her or his benefits. The will draftsperson should be aware of this, and should weigh up with the testator the pros and cons of a gift. A surviving spouse or partner or a person who has a disability and who is given a modest estate by will, might well find that the loss of Centrelink benefits more than outweighs the value of the gift. A one-off inheritance may be an exempt lump sum and not income under s 8(1) if the Secretary so determines: Social Security Act 1991 (Cth) s 8(11). The note to s 8(11) provides: Note: Some examples of the kinds of lump sums that the Secretary may determine to be exempt lump sums include a lottery win or other windfall, a legacy or bequest, or a gift — if it is a one-off gift.

The inheritance would not be exempt for the purpose of an asset test.

Disclaiming the benefit given by the will after the death of the testator is not a solution: see [2.93].

Minor children as beneficiaries 2.28 Even if the testator has no children, but there is a possibility that he or she may have or adopt children that he or she would wish to provide for, the will should contain a gift to children (Form 27.04 may be used). Unplanned children happen and they should not be accidentally left out! Consider the choice of executors and trustees, and how the estate is going to be managed during minority. Is the guardian to be one of the executors? Is the executorship to be separated from the trusteeship? See Chapters 7 and 10. Should the will appoint a guardian of the minor children? See Chapter 7. Should financial provision be made for whoever will have care and control of the minor children, even if no guardian is appointed? [page 32]

Gifts to brothers and sisters of the testators in corresponding wills of spouses 2.29 In making gifts to siblings where you are making wills for both members of a couple (for example, a husband and wife), do not simply give the husband’s estate to his relatives, and the wife’s estate to her relatives, as the result will be to disinherit totally the relatives of the first dying if the survivor inherits from the first dying: see further [27.29]. In using Form 27.04, 27.05 or 27.06, or indeed any of the precedents, you should read the text which deals with the form in order to become familiar with how and when it is to be used and any problems the form may have.

Beneficiaries with disabilities 2.30 If the testator has any beneficiaries who are mentally incapable, financially unstable, or drug or alcohol dependent, you may have to consider drafting an appropriate protective trust (see [24.13], [24.14]; Form 24.10); or discretionary trust: see [25.17], [25.18]; Forms 25.01, 25.05, 25.06.

Doctors or health care givers as beneficiaries 2.31 Patients should be wary of appointing their medical practitioners as beneficiaries. There may be a suspicion of undue influence, or even a suspicion that the medical practitioner may have ‘eased the passing’ to get a benefit sooner: see Lord Devlin, Easing the Passing: The Trial of John Bodkin Adams, Faber, London, 1985.

Bankrupts as beneficiaries 2.32 If a beneficiary is or may become bankrupt, the benefit will pass to the trustee in bankruptcy for the benefit of the creditors unless the will is correctly worded to prevent this: see [25.18]. A testamentary discretionary trust may be used to protect assets: see Form 25.01.

Who are going to be executors and trustees? 2.33 Who are the best persons to choose for executors and trustees? This question is dealt with in [2.55] (generally); [10.1]–[10.4], [10.6] (choice where there are long-term provisions); [29.18] (choice where business is left as a legacy).

Drafting the will: preliminary considerations Multiple original wills 2.34

The practice is to refrain from executing duplicate original

wills — it is dangerous to execute two, or worse, more than two, duplicate originals. The propounder of the will (usually the executor) may have to prove both the originals. (It will be difficult or impossible to be sure which of the executed originals is in fact the last will, and if they contain a general revocation clause, the one which was executed last will revoke the other.) Further, the testator may destroy one original with the intention of revoking the will — the destroyed original could be the one executed first, in which case the destruction is of no effect; or the testator might destroy the true will — the later document to be executed — and effectively revoke it. See Re Jaray [1978] 2 NZLR 26. [page 33] There is one exception to the principle that only one original will should be executed: where the testator makes two different original wills, one to deal with property in a particular foreign country only, and the other to deal with property in all other countries including Australia. Such wills and their revocation clauses must be carefully drafted: see [3.2].

Codicil or whole new will? 2.35 In general, codicils should not be used unless there is a particular reason: see Chapter 30.

Duplicating the law in the will 2.36 In general, a testator should not duplicate by direction in the will what the law already does. (Thus, general directions for the payment of debts, such as a gift of the whole of the testator’s property for the payment of debts, have no place in the will.) Some exceptions to this principle have been made in this book, particularly when it would help a lay executor or beneficiary to

know what the law implies into the will. Form 29.01, general form of powers of executors and trustees, is the primary example.

Mixing precedents 2.37 Avoid mixing precedents from various sources in one will. They may have different styles and defined terms, and inconsistencies and contradictions can arise: see, for example, McClymont v Hooper (1973) 128 CLR 147. If you do have to mix precedents, take care to ensure a seamless result.

Joint tenancy and tenancy in common 2.38 Do not confuse joint tenancy with tenancy in common. A tenant in common can leave her or his interest by will; but a joint tenant cannot, because the interest of the first joint tenant to die passes on her or his death to the surviving joint tenant (or tenants) by right of survivorship: see [27.8]. The differences between joint tenancy and tenancy in common are summed up in Form 2.06. Where there is a joint tenancy, be sure that the will works whether the testator is the first or last to die. Also, do not confuse a joint tenancy (with the implication of absolute vesting) with a partial interest (life interest).

Tax implications of provisions in the will 2.39 Be aware of tax implications. Capital gains tax presents major pitfalls: see Chapter 15.

Superannuation: importance of in drafting 2.40 Superannuation is an important element in estate and financial planning: see Chapter 17. On the role of superannuation in planning a will for a testator who is a member of a blended family, see [9.11]ff.

[page 34]

Drafting the will: process of drafting and structure of a will Is the draftsperson working directly on a computer, or taking instructions for a secretary to prepare the document? 2.41 There are two methods for using these precedents: 1. the draftsperson drafts directly onto the computer in the presence of the client; or 2. instructions are taken and written down by the draftsperson in the presence of the client and the details are entered electronically later. The process described in the following paragraphs ([2.42]–[2.50]) is appropriate for wills drafted by either method. Where differences between the two methods become relevant, this will be noted.

Framework (structure) of will: summary of how to use precedents 2.42 The chart in Form 2.03 lists the principal forms offered in this book, and comments on when they should or should not be used. Other comments on their use are also offered. For more detail, refer to the relevant chapters of the book. Forms marked with an asterisk are collected in Appendix A, the selection of most used precedents. You should read the notes and warnings given above each form in the body of the book as these notes and warnings are not repeated in Appendix A. There is no fixed formal structure for a will, but there are conventions. The principle is: be logical, and follow convention generally — the conventional structure is logical. The precedents

in this book, and the selection in Appendix A, follow a conventional order. The chart in Form 2.03 follows this convention.

Structure of will and order of precedents 2.43 The precedents in this book are designed to fit easily into a will structured along the lines suggested in Form 2.03; and see [2.42]. See also the example plan for a will in Form 2.01 and the completed will made up from that plan, Form 2.02. Indeed, the model wills offered in Appendix B were prepared and arranged in this way, and the precedents in this book are arranged in the order in which they would normally appear in a will.

Selection of ‘most used precedents’: Appendix A 2.44 It is possible to select from the precedents in this book a group of ‘most used precedents’. Experience shows that the great majority of wills can be drafted using only precedents from this select group of ‘most used precedents’, and most of the remaining wills need contain only one or two clauses from elsewhere in the book. The number of precedents in this selection is quite small. This selection of ‘most used precedents’ forms Appendix A, and it corresponds to the framework of a will: Form 2.03. In a sense, the framework is a brief commentary on the forms in Appendix A, and suggests when those forms should or should not be used. The will draftsperson may find it useful to become familiar with the forms in Appendix A and the framework in Form 2.03. It is suggested that a convenient method of using Appendix A and the framework in Form 2.03 is as follows. [page 35]

Outline (or ‘plan’) of will being drafted 2.45

During the interview the will draftsperson will form a

strategy to construct a will to meet the particular client’s needs. In practice, the will draftsperson will generally create a plan or pattern for the will. The framework in Form 2.03 is a guide to selecting and ordering the precedents to go into the will. An example plan for a will, which also illustrates the form that instructions from the drafting solicitor to the person entering the details electronically could take, is set out as Form 2.01. Form 2.02 contains the completed will that would result if those instructions were expanded into a complete will. No doubt, as the will draftsperson gains experience, he or she does not need to write out a separate plan for every simple will. But, of course, an express written will plan is needed every time if the will draftsperson leaves the actual preparation of the will to another person who enters the details electronically. Examples of complete wills drawn using these precedents are contained in Appendix B.

Technical process of drafting a will using this book 2.46 It is suggested that the following steps be taken to draft a will using the precedents in this book: 1. Access the collection of most used precedents (Appendix A) online by following the instructions contained in the ‘Publisher’s Note’ at the beginning of this book and using the PIN code affixed to the cover. 2. Work through the forms in Appendix A with the client. Where, as is often the case, the solicitor is drafting wills for a married couple (or de facto partners), the solicitor (bearing in mind the framework in Form 2.03) should work through the forms in the selection to get instructions for the will of one of them, while asking questions of both to test whether the two are really in agreement. The purpose of the process is to establish capacity and voluntariness, to create a plan for the will, to choose the appropriate precedents, and to fill in the blanks in the precedents. In the process the solicitor will have

3. 4.

to find out the family, business, property and general financial situation of each client. (A similar procedure is adopted where there is only one client.) The will cannot be safely or properly drafted without this type of information: see, for more detail, [2.7]ff. Keep adequate file notes: see [2.6]. If the solicitor is drafting the will directly on to the computer in the presence of the client, as the solicitor works through the selection with the client, the solicitor splits the screen and displays the file of most used precedents (Appendix A) on one part of the screen, and displays the client’s will in preparation on the other part of the screen. The solicitor selects the appropriate clauses from Appendix A, and copies them to build up the testator’s will, filling in the blanks and amending the forms if necessary as the process continues. The close attention of the client–testator who is watching the screen while the will forms, helps eliminate mistakes and misunderstandings. [page 36]

5.

If the solicitor is drafting the will by taking handwritten notes of the testator’s instructions in the course of the conference, the solicitor will do so in a form which the person entering the details electronically can use to prepare the draft will for the testator’s consideration, or, if appropriate, the fair copy of the will ready for execution. An example of the form these instructions might take constitutes the plan of the will: see Form 2.01. If a provision is required and no exact precedent for it is contained in Appendix A, try to complete the drafting of the provision while the client is present. If this is done, the provision can be read back to the client then and there, and

misunderstandings can be eliminated. Methods of drafting provisions for which there is no exact precedent in Appendix A are: (a) the relevant chapter of this book may have a precedent which can be used; (b) a precedent in this book may be modified to suit the client’s needs; (c) a precedent may be sought from another source — if one is found it should be considered carefully and modified as appropriate to ensure that it fits the rest of the will without conflict; or (d) a totally new provision may be drafted.

6.

7.

8. 9.

If necessary, complete the drafting of difficult clauses after the client has left. The client may have to communicate further instructions such as addresses or exact names; and you may have to obtain the exact names of charities by telephone or from the websites of the charities: see [2.59], [28.1]. Give the completed instructions to the person entering the details electronically. Very carefully check the draft returned from the person entering the details electronically against the instructions. Follow the checking and execution procedures set out in [2.69]ff, [2.72], [2.73], [2.76]. When from time to time you make changes to the forms electronically, and so make new versions of Appendix A, you should retain your old, dated, versions, for they will be the record of the precedents you used for earlier wills you drafted.

Correct names and addresses of testator, beneficiaries, executors, guardians, etc 2.47 Generally, precise names and addresses for all persons named in the will should be obtained. Where a person is known by more than one name, both names should be given, separated by a phrase like ‘also known as’. The will should state the address of each person named in the will. Where a gift is made to a class such as ‘my children’ or ‘my brothers and sisters’, the names of the members of the class do not appear in the will, for reasons

given in [27.3]. Even though the names and addresses of the beneficiaries in the class do not appear in the will, those names and addresses should be recorded in the Estate Information Manual: see [2.5] and Form 2.04. Who is going to inherit in the unlikely event of all family members predeceasing the testator? Usually a charity is inserted here, unless the testator instructs [page 37] the solicitor that he or she believes that the possibility of all the beneficiaries predeceasing her or him is so slight that it is unnecessary to make a gift to a charity at this point. In this case the will draftsperson should make a file note that the testator decided that a gift to charity was not necessary.

Gift clauses all in one sentence beginning ‘My executors hold my estate on trust:’ 2.48 All clauses making gifts are drafted on the basis that the entire estate has been given to the executors on trust by the provision in Form 18.01. This means that all clauses making gifts take the form of a series of instructions to the executors: ‘to give …’ or ‘to pay …’ or ‘to divide …’. This wording is appropriate whether or not schedules are used in wills of spouses or of partners (see Chapter 9), and whether or not schedules are used for wills drawn in contemplation of marriage: see Form 8.01. The reasons for adopting this approach are set out in Chapter 18. You may adapt these precedents for use in wills drawn in a different style, but take care that defined terms, and other aspects of the will, are consistent. There is one exception to this approach: Form 25.01, the testamentary discretionary family trust, is a complete will in itself, and uses a different structure for its dispositions.

Schedules 2.49 Schedules are useful where the testator requires a specific group of provisions to operate together in a particular set of circumstances, and it is inconvenient to try to work the group of provisions into the text of the will as a whole — examples are schedules to contain life estate or trust provisions. Schedules are also useful where the testator requires a specific group of provisions to operate together in one set of circumstances, and requires a different group of provisions to operate in another set of circumstances. Examples of situations in which schedules may conveniently be used follow: 1. where the will is made in contemplation of marriage, and one set of provisions is to operate if the marriage takes place and another set of provisions is to operate if the marriage does not take place (see Chapter 8); 2. where the testator has a spouse or partner and has in mind a specific group of provisions which are to operate in the case where the spouse or partner is able to inherit from the testator, and a different group of provisions which are to operate if the spouse or partner is not able to inherit from the testator (see Chapter 9); 3. where the testator wishes to create a trust or life estate or other complex provisions that are to operate as a group in particular circumstances, and it is inconvenient to try to work the group of provisions into the text of the will as a whole. In this situation schedules are used as a matter of course (see Chapters 25 and 26); 4. where it is important not to create a joint guardianship with a surviving parent, and it is convenient to place testamentary guardianship provisions in a schedule (see Chapter 7); [page 38]

where the testator wishes to make mutual wills or a contract to leave property by will (see Chapter 33); and 6. if the testator is in any case using schedules in the will, the executors’ powers clause should be in a further schedule: see Chapter 9. Used appropriately, schedules simplify the drafting of a complicated will and help reduce confusion in the minds of the testator and the will draftsperson. Using schedules helps the will draftsperson and the testator to think about one thing at a time. There are two stages which must be addressed in drafting complex provisions. First, the conditions which bring each schedule into operation must be worked out. They must be precise. For instance, where one schedule comes into operation if one condition is fulfilled, and a second schedule comes into operation if a contrasting condition is fulfilled, it is essential that the conditions be mirror images of each other. There must be no unintended gaps or overlaps between the conditions for each of the two schedules to operate, and the conditions must work as intended. Formulating the conditions for the schedules to operate focuses the mind on identifying precisely how and when the provisions in the schedules are to operate. (Testamentary and statutory 30-day survivorship provisions create unexpected difficulties: see [2.54], [6.4], [9.7].) For further discussion, see [9.3]ff and see Form 9.01. Second, once the conditions for the different schedules to operate have been formulated, the specific provisions which each schedule is to contain must be worked out. It is much easier to do this once the conditions for each schedule to operate have been settled. 5.

Placement of schedules 2.50 When schedules are used they are normally placed at the end of the will. This book is written with this in mind. The executors’ powers provisions (Form 29.01) are best placed in a

further schedule after the other schedules because the executors’ powers are administrative only and are long. If they are placed before the other schedules, they interrupt the continuity of the will and make it difficult for the will draftsperson and the testator to pursue the main line of thought of the will. The client gets bored while the executors’ powers are explained and thinks the solicitor has lost the way. For the same reason, even where no schedules are used, the executors’ powers provisions are placed at the end of the will. Form B05 in Appendix B provides an example of a will using schedules.

Drafting the will: a few particular words and their use Words to beware of 2.51 Many words have particular meanings, or are ambiguous or otherwise difficult to use. Examples are: ‘issue’, ‘children’, ‘parents’, ‘grandchildren’, ‘stepchild’, ‘sisters’ and ‘brothers’, ‘he’, ‘she’, ‘they’, ‘survivors’, ‘simultaneous’, ‘as if’: see too [2.24]–[2.25]. [page 39] Will draftspersons should bear in mind the remarks of Megarry J in Re Lawrence’s Will Trusts [1972] Ch 418 at 434: In truth, ‘as if’ clauses are perilous devices: it is a rare draftsman who can foresee all the possible consequences of a relentless application of the hypothetical state of affairs that he is bringing into being.

‘Shall’ and ‘must’ 2.52

‘Shall’ is ambiguous, since it can indicate the future or it

can indicate the imperative. Attempts to make the use of ‘shall’ more precise have not been successful, at least in colloquial language. In this book ‘must’ is used when the imperative is meant. The relevant considerations are discussed in: R Eagleson and M Asprey, ‘Current Topics — Must We Continue with “Shall”?’ (1989) 63 ALJ 75; JM Bennett, ‘In Defence of “Shall”’ (1989) 63 ALJ 522; R Eagleson and M Asprey, ‘We Must Abandon “Shall”’ (1989) 63 ALJ 726; (1989) 63 ALJ 860 (letter to the editor); and JM Bennett, ‘Final Observations on the Use of “Shall”’ (1990) 64 ALJ 168.

Mandatory or precatory words 2.53 If the testator intends the terms of a provision in the will to create a binding obligation, the words used should show this intention clearly. Similarly, if the testator does not intend the provision to create a binding obligation, but only to express a desire or wish, the testator should make this intention abundantly plain. Modern courts do not construe a document as imposing a trust unless on the construction of the document as a whole the intention to impose a trust is shown. Nevertheless, the intention that a provision not create a binding obligation is best shown by expressly negating in the provision any intention to create a trust or binding obligation. See further Lambe v Eames (1871) LR 6 Ch App 597; Re Williams [1897] 2 Ch 12; Re Stable [1957] St R Qd 90; Hayes v National Heart Foundation of Australia [1976] 1 NSWLR 29; Re the Will of Logan [1993] 1 Qd R 395, 398–9. If, therefore, the testator wishes to leave a separate nontestamentary, precatory document in the form of a letter or list, for example for the guidance of executors, the document should contain a statement to that effect: see [2.89], [31.16] and Form 31.10.

Drafting the will: types of provisions and gifts 30-day survivorship requirement: death of beneficiary not having survived testator by 30 days 2.54 The precedents in this book have not been drafted so as to build into each gift a requirement that the beneficiary must survive the testator by 30 days in order to inherit. Instead, a 30day survivorship requirement for the whole will is offered as Form 6.02, which is numbered as a separate clause. We recommend that (with two exceptions) Form 6.02 be included in all wills, for the reasons given [page 40] in [6.4]. It should be emphasised that in no jurisdiction is a 30day survivorship period mandated: the testator is free to choose any period (or no period). The exceptions to the principle of general inclusion of a 30-day survivorship requirement are the following. Where schedules are used for wills of spouses or partners in blended families — that is, where Form 9.01 is used — the 30-day survivorship requirement is excluded for the reasons given in [9.7], and see Form 9.01; and for similar reasons the requirement is excluded in Form 25.01, the testamentary discretionary family trust.

Executors and trustees, choice of; machinery for administering the will and its trusts 2.55 Usually (but not always) the persons who are appointed executors will also be appointed trustees. The functions of executors are to dispose of the testator’s body (see Chapter 5), and to administer the estate in accordance with the law and the will — to collect and protect the assets, to get a grant if necessary,

to pay the debts, to pay the legacies and transfer devised property, and to ascertain the residue and distribute it to those entitled. Once the residue is ascertained, the executors become trustees in respect of the residue. The executors may also have to hold estate property on trust for the longer term, perhaps for minor beneficiaries. When the executors hold for the longer term in this way, they hold as trustees. The persons who are appropriate for the more or less short-term purposes of administering the estate are often also appropriate for the longer-term task of holding property as trustees, but it may be that different persons would be appropriate for that task. The executors should be asked beforehand whether they will be prepared to act, especially if there is any doubt. It is sensible to tell the executors where the will is kept. If you appoint an institutional executor to act as co-executor with a private individual, check with the institutional executor before appointment: the institutional executor may refuse to act with another executor. Appointing individuals has the advantage of allowing them to choose the appropriate solicitor or institutional executor to do the work of administration, or to do it themselves if they wish. On the difficult question whether it is better to appoint individual persons or an institution to the executorship or trusteeship, see Chapter 10. Usually, the residuary beneficiaries — if they are adults — are the best choice for executors. Two is the best number. Where trusts are created, trustees will have to be chosen. The considerations are complex. See further on choice of executors and trustees, Chapter 10; and [29.18] (choice where business is left as a legacy). The powers given to executors and trustees are wide (see Chapter 29); however, particular circumstances may need special or unusual powers.

Gifts of money (pecuniary legacies): beware double gift

where there is 30-day survivorship requirement 2.56 Where spouses or partners making corresponding wills intend to give a pecuniary legacy (a gift of money) to take effect on the death of the survivor only, and the benefits to each spouse or partner are subject to a 30-day survivorship [page 41] provision (see [2.54], [6.4]) particular care in drafting must be exercised. Say, for example, a couple want $100,000 to be paid to C on the death of the survivor of them, but not on the death of the first-dying. Because the sum must be drawn from the estate of the survivor and not from the estate of the first-dying, and no one knows which of the two will die first, the gift of $100,000 must appear in each will. However, if the will is incorrectly worded — for instance, if each will contains a gift in the form: ‘If [(my wife) or (my husband), as the case may be] does not inherit from me, to give $100,000 to C’ — and the testators die within 30 days of each other, the gift to C would come from the estate of each of the testators, giving C an unintended double gift. The problem of the unintended double gift is avoided if the legacy is given in both wills in the words of Form 19.02: ‘if I survive [my husband (or) my wife (or name the other testator)], to give [amount] to [name and address of beneficiary]’. Only one of the testators will survive the other (even if only for a very short time), and so the gift to C will be paid once only. There is no danger of the double gift in wills of spouses or partners where the 30-day survivorship requirement is excluded in both wills. The requirement is excluded when Form 9.01 is used to set up schedules: see [9.3]. It is also excluded in the testamentary discretionary family trust offered in Form 25.01. The unintended double gift is further discussed in [19.2]; and see Chapter 19 for more detail on pecuniary legacies.

Specific gifts: problems with gifts of specific items 2.57 A specific gift is made where the will specifies that a particular asset is to go to a beneficiary; for example: ‘My executors hold my estate on trust: to give my Ford Falcon [referring to a particular vehicle] to my son A.’ If the testator has disposed of the car by the time of death, the gift to the son fails. This is called ‘ademption’: the gift ‘adeems’. A gift in this form would also cause a problem if the testator disposed of her or his Ford Falcon, and acquired another car — even if the new car were also a Ford Falcon — between the date of the will and the date of death. There are obviously borderline cases. A second problem with specific gifts is that the value of the subject matter can change dramatically between the making of the will and the death. This can imperil the fairness of the testator’s scheme of distribution of her or his assets. A third problem with specific gifts is that a specific gift of an asset subject to capital gains tax (CGT) may result in a greater than necessary CGT liability: see Chapter 15. The client’s attention should be drawn to the dangers of making substantial or numerous specific gifts. But if the client insists, the solicitor should advise the client to review the will frequently in case assets have been disposed of, new assets have been acquired, or the relative values of specifically bequeathed assets have changed significantly. These difficulties can be avoided if the testator instead gives pecuniary legacies (gifts of money) or, even better and more fairly, gives the beneficiaries shares in the estate or the residue of the estate. A partial, and not very satisfactory, solution may be to give ‘whatever car I own at my death’ or ‘my principal residence at my death’. See Chapters 20, 21 and 22 for more detail on specific gifts.

[page 42]

‘Residue’: gifts of 2.58 The word ‘residue’ is a useful term of art to cover whatever property remains in the estate to be disposed of by will, after taking into account the payment of debts, pecuniary legacies and specific gifts. The term ‘residue’ is preferred to words like ‘rest’, ‘remainder’, and so on, because these words may have other connotations. If the will contains any specific gifts or pecuniary gifts, then the provisions in the will which deal with what is left are gifts of ‘residue’ and are worded to provide for ‘the residue’ or ‘the residue of my estate’ rather than ‘my estate’. Every properly drafted will contains a gift of the whole estate or a gift of residue, as the case may be. See generally on gifts of residue (and gifts of the whole estate), Chapter 27. A gift of residue (even one protected by a substitution provision and an accruer provision, as is the case in the standard gift to children and grandchildren Form 27.04) can fail: see [2.64]; and for more detail [27.18]. For this reason the will should contain a backup gift of residue (the backup gift is called a ‘gift over’). A gift over of residue might be unnecessary if the class or group of beneficiaries in the first gift of residue is large. So, in the common case where the first gift of the whole estate, or the first gift of residue (as the case may be), is to the testator’s children, with substitution in favour of the children’s children, the gift over of the estate or the residue might be to siblings of the testator, with substitution in favour of siblings’ children (Form 27.05 or 27.06), with a further gift over to a charity (Form 28.01 or 28.02); or, leaving out siblings, the gift over could simply be to a charity. (Forms 28.01 and 28.02 will not fail even if the named charity does not take.)

Gifts to charities and unincorporated associations

2.59 Charities must be correctly named. You will usually need to contact the charity or check its website. Form 28.01 is offered for a gift to a charity with a gift over safeguarding against the possibility that the charity no longer exists or refuses the gift or part of the gift. Be wary of specifying the purposes for which the charity could use the gift — the charity may prefer not to have strings attached. Consider using the charity’s suggested gift clause offered on its website — these clauses often specify or suggest a particular purpose. On the tax consequences of making a testamentary gift to charity, see Chapter 15. See generally on gifts to charities, Chapter 28. For a gift to an association which may be unincorporated, the association must be contacted to find out whether it is incorporated or not, and if not, to whom the gift should be made; and also, who is to give a discharge to the executors. Gifts to unincorporated associations may be void, or have undesired effects, unless they are carefully drafted. In fact, there is no general form of gift to an unincorporated association that can be guaranteed to work for all cases: see further Chapter 28.

Life interests and rights of occupation 2.60 Avoid giving a life interest or right of occupation if possible. A life interest must be very carefully drafted to ensure that the life tenant has scope for realistic decisions, particularly in relation to changing accommodation needs, for life: see Chapter 26 and Forms 26.01 and 26.02. Life interests present capital gains [page 43] tax hazards: see Chapter 15 and Chapter 26. Similar considerations and problems attach to rights of occupation: see [26.8] and Form 26.05. Ensure that the rule against perpetuities is not breached: see [25.15]–[25.16].

Trusts 2.61 In some circumstances, for example where the estate is large or where there is a beneficiary with a disability, the will draftsperson might suggest a testamentary discretionary trust, which is a discretionary trust created by will. An advantage of the trust is the discretion given to trustees in relation to the distribution of capital and income. This discretion can enable the trustees to spread income and also to minimise capital gains tax. One important advantage of a testamentary trust over an inter vivos trust is that minor beneficiaries receiving income from the trust have a higher tax-free threshold than minor beneficiaries receiving income from an inter vivos trust: compare Chapter 15. On the other hand, complex trusts are sometimes better created inter vivos rather than by will. If a testamentary trust is created, it must be as carefully and comprehensively drawn as if it were inter vivos: see Chapter 25. Disadvantages of trusts are expense, reliance on a trustee, inflexibility in changed or unforeseen circumstances and clumsiness. Ensure that the rule against perpetuities is not breached: see [25.15]–[25.16]. See generally on trusts, Chapter 25. Testamentary discretionary family trust 2.62 The present edition of this book includes a precedent for a testamentary discretionary family trust: Form 25.01, discussed in [25.2]ff. It has been drafted as a complete will in itself, and it is accompanied by a full explanatory document, Form 25.01A.

Conditional gifts 2.63 If possible, try to avoid using conditional gifts; for example: ‘I leave my estate to A. If A marries someone who is not of the X faith, my estate must pass to B.’ Consider suggesting simpler and less onerous alternatives to the testator. Be careful in drafting conditional gifts. Questions to ask are: 1. Is the condition legal?

2. 3. 4. 5.

Is it against public policy? Does it breach the rule against perpetuities? How will it be construed? How should it be drafted to ensure that the testator’s intentions are fulfilled? The test for validity of a condition precedent is less exacting than the test for a condition subsequent: see further Kotsar v Shattock [1981] VR 13; Re Tepper’s Will Trusts [1987] 2 WLR 729; Re Bradley [1994] 2 Qd R 233; Fraser v Fraser [2003] 1 Qd R 367; [2001] QSC 490; BC200108114 (Phillipides J); K Mackie, ‘Testamentary Conditions’ (1998) 20 UQLJ 38. In Hyde v Holland [2003] NSWSC 733; BC200304479, a testamentary gift ‘on the condition that my said brother has attended Alcoholics Anonymous and complied with their requirements concerning sobriety for a period of not less than two (2) years’ [page 44] was held to be a valid condition precedent. In Ellaway v Lawson [2006] QSC 170; BC200605353, Douglas J upheld a condition precedent which made a gift to the testator’s daughter conditional on her divorcing her husband or his death. Provisions requiring the use of a particular surname: … are anachronistic. They infringe the right of an individual to use any surname of his choosing. If a widow with infant children remarries, I consider it would be against public policy to require as a condition of receiving a benefit under their father’s will that the children not take the surname of their step-father if such was their wish: Littras v Littras [1995] 2 VR 283 at 286–7 per Beach J.

Failure of gifts; drafting to protect against or prevent failure of gifts 2.64

Subject to provisions to the contrary in the will, a gift will

fail in the following circumstances: where no survivorship or accrual provision applies: if a beneficiary fails to survive the testator; where the particular jurisdiction has a statutory 30-day survivorship provision which applies because it has not been excluded by the will: if the beneficiary fails to survive the testator by 30 days and there is no accrual; and where the will contains a 30-day survivorship provision (Form 6.02) (or if some other period of required survivorship is specified in the will): if the beneficiary fails to survive the testator by the specified period and there is no accrual. There are drafting techniques for preventing total, disastrous, failure of gifts. A first line of defence is the gift of residue or ‘residuary gift’. The residue contains what is left after debts, pecuniary legacies and specific gifts have been paid and distributed. It follows that if a pecuniary legacy or specific gift fails, its subject matter remains part of the residue. It follows too that the gift of residue must be carefully drafted to ensure that the testator’s wishes are as far as possible followed, even if a pecuniary legacy or specific gift fails. Every will should have a gift of residue. A second line of defence is the substitution provision (or ‘gift over’) within the gift provision itself. This provides that if a primary beneficiary does not survive the required time, the gift is to go to substitutional beneficiaries (such as the primary beneficiary’s children). It is usually important (and common practice) to draft gifts such as gifts to children or siblings of the testator in a form which includes substitutional provisions: see [27.12]–[27.14]; and, for example, Form 27.04. (The substitutional provisions offered in the forms override the statutory substitutional gift provisions which exist in all jurisdictions. It is not good practice to rely on the statutory substitutional gift provisions, which are discussed in [27.15].) Form 27.04 contains a substitution provision: grandchildren are

substituted for children who do not survive the required period but who leave children who survive the testator. A third line of defence is to have a substitutional gift in a separate gift provision. The will contains the pecuniary legacy or specific gift, and the will also contains a separate gift provision (the substitutional gift) to take effect if the [page 45] initial pecuniary legacy or specific gift cannot take effect. A substitutional gift of this kind is commonly used as a backup in case a gift of residue should itself fail. The gifts of residue in Chapter 27 are worded to be used as primary gifts of residue, but they are worded to be used as substitutional gifts as well. This is the reason for the words ‘subject to the preceding trusts’ which are offered in many of the forms in Chapter 27. A fourth line of defence is the accrual (or ‘accruer’) provision within the gift provision itself. An accrual provision is a gift to those of a class or group of beneficiaries who survive (the testator or some person or event). An example would be: ‘to those of my nephews who survive me.’ If one nephew fails to survive the testator, then the benefit that the predeceased nephew would have taken accrues to those nephews of the testator who do survive the testator — they take by accrual. This is the basis on which many of the precedents in Chapter 27 are drafted: see [27.16]. Form 27.04 provides an example. Form 27.04 contains two accrual provisions: one for children in subparagraph (i) and one for children of children in subparagraph (ii). A fifth, and very important, method of defence against failure of a gift is the testamentary discretionary family trust in Form 25.01. It should be mentioned that there are other reasons why a gift can fail, such as, in some jurisdictions, disqualification of the beneficiary for being a witness to the will (see [31.29]), murdering

the testator or exercising undue influence or fraud to secure the gift. It is unusual to try to draft the will to secure it against failure for reasons of this kind. Such failures are rare, and the circumstances are so unexpected and diverse that testamentary provisions are not likely to be appropriate or even in good taste. Efforts to guard against failure of gifts are therefore limited to failure for the foreseeable reason of failure to survive. There is, however, one case where precautions are taken against some family and financial disasters: the testamentary discretionary family trust in Form 25.01. The rules which apply if the testator does not make provision for failed gifts are dealt with in Chapter 27, and especially [27.18]ff. Because the rules are complex and often might not accord with what the testator would want, the testator should always be asked to consider and provide for what should happen to the subject matter of the gift should an intended gift fail.

Excluding particular persons from inheriting 2.65 If a particular person is to be excluded from the inheritance, the reasons for the exclusion should not be included in the will, but a statement or statutory declaration setting out the reasons, based on provable facts, can be made: see [14.21]. Again, if the intention is that the person must not be able to make a successful family provision claim, see [14.22]ff.

Delegation of testamentary power 2.66 The rule against delegation of testamentary power is that a testator may not delegate to others the power to decide how her or his estate is to be disposed of. However, the testator may confer on her or his executors a power of selection and apportionment among a sufficiently defined class of beneficiaries: Tatham [page 46]

v Huxtable (1950) 81 CLR 639; Horan v James [1982] 2 NSWLR 376; Gregory v Hudson (1998) 45 NSWLR 300; Ex parte The Full Board of the Guardianship and Administration Board (2003) 27 WAR 475; [2003] WASCA 268; BC200306823. The rule against delegation of testamentary power has been modified in the Australian Capital Territory, New South Wales, the Northern Territory, Queensland and Victoria to make the test for certainty in a will correspond with the test for certainty for an inter vivos trust.3 The rule against delegation of testamentary power does not apply to charitable gifts, and because of the favour in which charities are held, the law permits a testator to direct a fund to be distributed among such charities and in such proportions as her or his executors may decide. A testator is permitted to create a trust for charitable purposes, even if the identification of the particular charitable purposes is broad, or even uncertain, ‘as long as it is clear that the trust is or can be rendered to be exclusively for charitable purposes’: HAJ Ford and WA Lee, The Law of Trusts, Westlaw AU, [20.030], accessed 15 July 2016.

Mutual wills; contracts to make wills 2.67 Avoid them. If you have to make them, draft them carefully. Ensure that the parties (usually spouses) know the effects of the arrangement, and that by making the contract they are losing the power to dispose of their own property freely, both inter vivos and by will: see further Chapter 33.

Incorporation of documents in the will 2.68 Avoid incorporating a document into a will if possible: see [20.14].

Preparing will for execution

Pagination; attestation not on separate page 2.69 The person preparing the will should not clip the pages of the will together — a mark will be left and this may produce a requisition from the Probate Registrar asking for an explanation of what was attached. The will should not be printed in such a way that the date, attestation clause or signatures are on a page separate from the rest of the will. In particular, the testator’s signature should not be separated from the signatures of the witnesses by being on a separate page: Woodley-Page v Simmons (1987) 217 ALR 25; BC8701133 (SC (NSW), Young J). The pages of the will should be numbered, and the number of pages in the will indicated with the page number in the footer; for instance, ‘2 of 5’.

Corrections and alterations 2.70 Avoid corrections and changes to wills, but, if they are necessary, have each correction properly executed in the margin near the alteration; that is, signed by the testator and two witnesses in the same manner as for a will: see [2.75]ff, [31.27]. It is common practice for alterations to be authenticated by the testator [page 47] and two witnesses by initialling rather than by signing, but it is suggested that alterations should be signed rather than initialled — partly because the statutes generally refer to signature, and partly because mere initialling may mislead the testator and witnesses into believing that the formalities are unimportant.

Execution: checking the will, counsel’s advice; financial advice

Negligence: checking the will — textual errors; incorrect advice 2.71 Have the will checked, if possible by another solicitor, before submission to the client. Compare it with the written instructions and notes, and look for spelling mistakes, omissions, errors, inconsistencies and contradictions. Check it again after execution. It is not settled where a solicitor is liable in negligence to actual or potential beneficiaries who fail to receive an intended benefit because of poor drafting. It would seem that such liability might well be incurred, and the general movement of the law has been towards imposing this liability. Walker v Geo Medlicott & Son (a firm) [1999] 1 WLR 727 stands for the proposition that a person who prepares a will which, although valid, does not correctly give effect to the intentions of the testator, will not be liable in negligence unless those affected have first mitigated their damages by seeking rectification of the will. In Horsfall v Haywards (a firm) [1999] EWCA Civ 816, (UK (CA) 18 February 1999), Mummery J set out the legal principles governing the relationship between holding a will draftsperson liable in negligence for failure to give effect to the testator’s intentions, and the duty of the plaintiff to mitigate her or his damages through the remedy of rectification. In relation to liability in negligence for delay in preparing a will, see [2.2]; in relation to the witness–beneficiary rule, see [2.75]; and in relation to the solicitor retaining the will, see [2.82]. There are many recent cases involving negligence of solicitors in relation to wills in the United Kingdom. See also the many cases referred to in R Mortensen, ‘Solicitor’s Will Making Duties’ (2002) 26 Melbourne UL Rev 60. There is a great deal of literature on professional negligence. A few articles may be cited: F Feld and R Gormly, ‘Hawkins v Clayton (1988) 164 CLR 539 — Doubts Concerning the Ratio Decidendi’ (1990) 12 Syd L Rev 638; N L’Estrange, ‘All for the Want of a Phone Call — Hawkins v

Clayton and Others’ (1988) 18 Q Law Soc J 95; F Riley, ‘Holding a Client’s Will: Consider the Duty of Care’ (1988) 26 Law Soc J 47; Solicitors’ Liability Committee, ‘Safe Custody for Wills’ (1988) 62 Law Inst J 664; R Mortensen, ‘Solicitors’ Will Making Duties’ (2002) 26 Melbourne UL Rev 60 and the articles cited in it. Mortensen (at 84ff) suggests management strategies to help solicitors minimise the risks inherent in preparing wills. Clarke v Bruce Lance & Co [1988] 1 All ER 364 (Court of Appeal) (discussed by SE Foster in ‘The Duty of Care Owed by Solicitors to Potential Beneficiaries’ [page 48] (1989) 63 Law Inst J 92) deals with the question of whether a solicitor owes a duty to actual or potential testamentary beneficiaries in advising the testator in matters which will affect the size of the estate or the value of an asset in the estate. In Clarke v Bruce Lance a solicitor drafted a will for a testator. The will contained a gift of a specific asset. Later, the solicitor advised the testator in relation to giving a fixed-price option over the asset concerned. When the option was exercised the price was unrealistically low. The beneficiary sought damages from the solicitor in negligence, alleging that the solicitor had failed to advise the testator that the fixed-price option was an uncommercial transaction. The Court of Appeal, reversing the court of first instance, held that the solicitor owed no duty of care to the beneficiary. For one thing, there was no close relationship of proximity between the solicitor and the beneficiary under the will; for another, since it could not be proved that the testator would have made provision or further provision for the particular beneficiary affected by the alleged negligence had the testator been warned by the solicitors, the solicitor owed no duty of care to

that person. (It should be noted that the notion of proximity is no longer a tool for determining whether a defendant owes a duty of care in negligence: see Imbree v McNeilly [2008] HCA 40; BC200807528 at BC200807528 [47].) The court in Clarke pointed out that the possibility of liability to the testator and to the estate remained. Is there a duty to check whether the testator’s statements concerning the testator’s property are correct? 2.72 In Miller v Cooney [2004] NSWCA 380; BC200407207, in the context of negligence, the court held that the existence or non-existence of a duty to check the ownership of property the testator describes as belonging to the testator depended on circumstances. The court stated that a solicitor had a duty to check what property formed part of the estate only if there was doubt about it at the time the instructions were obtained; and that the size and nature of the solicitor’s retainer would be relevant. It is prudent to verify the ownership of a testator’s property, although this may not be possible where an immediate will is made. The alternative is for the solicitor to include a clause in his or her costs agreement stating that searches to verify property ownership will only be conducted on specific request, the solicitor should ask the client whether he or she requires the solicitor to verify property ownership and the solicitor should record the client’s response. Even then, in the opinion of the authors of this edition of the text, there is still a risk that a court may find that in accepting instructions for a will the solicitor accepted a duty to take reasonable care to ensure that the testator’s instructions are implemented (as in Fischer v Howe) — hence verifying ownership is highly recommended. [page 49]

Difficult wills; counsel’s opinion or financial advice

2.73 Counsel’s opinion — or, if appropriate, the advice of a qualified financial adviser — should be sought if the drafting is difficult. Bear in mind that many a difficulty can be made to disappear without compromising the testator’s real intentions if a different — perhaps ‘lateral thinking’ — approach to drafting the will can be adopted.

Execution: formalities Witness–beneficiary 2.74 In most jurisdictions, and subject to varying statutory qualifications (see [31.29]), neither a witness nor a person who is married to a witness may benefit under the will, and a solicitor who negligently allows a will to be executed by a witness who is also a beneficiary or married to a beneficiary — thus causing the beneficiary to lose the benefit — will be liable to the beneficiary in tort: Ross v Caunters [1979] 3 WLR 605; Watts v Public Trustee for Western Australia [1980] WAR 97; Seale v Perry [1982] VR 193; Hill v Van Erp (1997) 188 CLR 159; and compare Hawkins v Clayton t/as Clayton Utz (1986) 5 NSWLR 109 (judgment of McHugh JA) and Hawkins v Clayton (1988) 78 ALR 69. In Hill v Van Erp, a solicitor allowed the spouse of a beneficiary to witness a will. The beneficiary was excluded from taking by the witness–beneficiary rule. The High Court held the solicitor liable in negligence. The rule which disqualifies the witness–beneficiary has been abolished in the Australian Capital Territory, South Australia, Victoria and Western Australia: see [31.29]. Even in those jurisdictions a beneficiary should not witness the will, because doing so could raise a suspicion that the testator did not have testamentary intention, or knowledge and approval of the contents of the will. In relation to liability in negligence for delay in preparing a will, see [2.2]; in relation to textual errors in the will, see [2.72]; and in relation to the solicitor retaining the will, see [2.83].

Formalities for the execution of a will or codicil 2.75 If the formalities and suggestions made in the points below are followed, a valid document will result and there will be a minimum of requisitions from the Probate Registrar. Follow the formalities exactly. (For more detail, see Chapter 31.) (On the instructions to be given to a client for executing the will in the absence of the solicitor, see [2.77] and Form 2.05.) 1. The testator must be in the same room with both witnesses, all being present together, throughout the process of execution. 2. It is important that neither of the witnesses be a beneficiary or married to a beneficiary. A person who is engaged to marry a beneficiary should not witness the will. [page 50] 3.

4. 5.

6.

Only one pen should be used by all three signatories. It should be a blue pen. A black pen used to be mandatory because older photocopiers did not copy other colours well. For modern photocopiers this is not a problem. Blue is also better for the following reason: modern photocopies are so good that it can be difficult to identify which document is the original, and which is the photocopy; if the original is signed in blue it is easy to distinguish it from the copies. Insert the date in the appropriate space on the will or codicil with the pen. When executing the wills of a couple, ensure that the testator and testatrix sign their own, not each other’s wills. Ensure that no page from the will of one has been exchanged for a page from the will of the other. Make sure that all the pages of the will are paginated, present and in the correct order.

7.

8.

9.

10.

11.

12. 13.

The testator should be asked to state, in front of both witnesses, that he or she has read the will (if that is the case), knows and approves its contents and intends the document to be her or his will. The testator or testatrix makes her or his signature above the word ‘Testator’ or ‘Testatrix’, as the case may be, at the end of the will, using the same pen, in the presence of both witnesses. Then, using the same pen, the first witness, in the presence of the testator and the other witness, signs immediately below the attestation clause. The witness adds her or his name, occupation and address. The second witness then signs alongside the signature of the first witness, in the presence of the testator and the first witness, and the second witness then adds her or his name, occupation and address. If there is more than one page, the testator and both witnesses should also sign at the foot of each preceding page, testator first, all being in each other’s presence throughout and all using the same pen. (It is not a requirement for validity that the testator and witnesses sign the preceding pages; the purpose is to identify the pages and to prevent later substitutions.) If any alterations are made to a will or codicil, those alterations must be signed (see [2.70]) in the margin near the alteration, first by the testator or testatrix, and then by the two witnesses; again, all three must sign in the others’ presence, and must use the same pen. A codicil should be kept with the original will, and a copy of the codicil with each copy of the will. It is essential to ensure that a codicil contains a reference to the date of the will to which it refers, that the will referred to is the correct one (that is, it is indeed the last will of the testator and not an earlier, revoked, one), that its date is correctly referred to, and that the will and the codicil together

contain all the intended provisions: see Chapter 32. See [2.77] as to making copies of the will, and [2.79] as to binding the original. [page 51]

Will executed unsupervised 2.76 Where a will or codicil is executed by a testator unsupervised by a solicitor, care must be taken to ensure that the client is fully aware of how to comply with the formal requirements. Because the procedure requires precision, and because an incorrectly executed will does not always show on its face that the formalities have not been complied with, the solicitor should be unwilling to allow a testator to execute a will unsupervised. If unsupervised execution is decided upon, a second solicitor should check the will before it is sent to and executed by the client. The client must be given detailed instructions. An example of such instructions is given in Form 2.05. You are welcome to make copies of these instructions to give to clients. You should check the signed will or a photocopy of it on its return to ensure that the will is properly executed and witnessed and that the names and addresses of the witnesses are legibly stated.4 If the contact details for the witnesses are not clear, this may make obtaining a grant of probate in solemn form (which may be appropriate in the event of a contest or potential contest) much more difficult.

After execution Copies of the will 2.77

It is usually convenient to make two copies of the will after

it has been executed and before it is bound. One copy is for the solicitor’s file, and the other is for the client. The advantage of making the photocopies after execution is that the copies of the executed document provide evidence that the original was properly executed. The copies also carry the names and addresses of the witnesses. This is desirable so that, if the original will is lost, proof of due execution of the original is easier: Will of Boardman (SC (NSW), Probate Division, 21 December 1988, Needham J, unreported). Make sure that all the pages of each copy are present and in the right order. The backing sheet (Form 32.01) should be turned over so that when the copy is bound and folded the backing sheet forms the cover. Staple each of the copies with one staple, and mark each of the copies ‘COPY’. Where electronic records are kept, the signed will should be scanned.

Envelopes 2.78 The envelope containing the original will should state the testator’s full name, the date of execution and the names, occupations and addresses of the executors. The envelope containing the copy of the will (to be retained by the testator) should state the same facts as are on the envelope for the original, and in addition it should state where the original will is deposited.

Binding the will 2.79 After the two copies of the original have been made, check that all the pages of the original are present and in the correct order. The backing sheet (Form 32.01) should be turned over so that when the will is bound and folded the backing sheet [page 52]

forms the cover. Then bind the original securely with several staples to ensure that the pages cannot easily be separated. (Copies should be stapled with one staple, and marked ‘COPY’: see [2.77].)

Attachments to wills 2.80 Do not attach anything to a will, not even by paper clips. A mark will be left and this may produce a requisition from the Probate Registrar asking for an explanation of what was attached.

Safekeeping of the will 2.81 The executor should know where the original will is kept. The envelope containing the testator’s copy should be kept with the testator’s papers at home, and should state that the original will is in the solicitor’s office safe if that is the case. If the original will is handed to the testator for safekeeping, advise the testator not to keep it at home, where it is at risk of accidental destruction, unadvised amendment by the testator, or even unauthorised interference by relatives. The testator should be advised to deposit it with a bank, the Registrar of the Supreme Court, or the Public Trustee (who may decline to accept it unless appointed executor). It is vitally important that the will be found easily and promptly after the testator’s death. The testator should record on the envelope containing the copy precisely where the original will is kept (including even the bank safety deposit box number).

Solicitor retaining the will 2.82 If the solicitor retains the will and finds out that the testator has died, the custodian solicitor will incur liability to beneficiaries if through negligence the custodian fails to notify the executor or beneficiaries of the death and that they are interested in the estate: Hawkins v Clayton (1988) 78 ALR 69 (High Court). It is not clear from Hawkins v Clayton whether the custodian of the will is under a duty to discover whether the testator has died. The

cautious solicitor may decide as a matter of principle not to retain original wills. If you do retain the original, confirm with the testator by letter that you are doing so. If the firm splits or changes its name or amalgamates with another firm, all the firms which are party to the rearrangement should have sufficient records of the files in the control of the other parties to ensure that original wills do not become difficult to trace. Law societies keep a record of changes in solicitors’ firms. If the solicitor retains the original will in safe custody, the solicitor should also retain in safe custody with the original will all documents relevant to the will. The will may not be needed until many years have passed, and if a problem arises in relation to the will (for instance, family provision, capacity or construction) then the related papers will also be needed. If they are not with the original will, they may have been destroyed. In relation to liability in negligence for delay in preparing a will, see [2.2]; in relation to textual errors in the will, see [2.71]; and in relation to the witness–beneficiary rule, see [2.74]. [page 53]

Revoked wills — retention 2.83 To avoid confusion, a will which has been revoked by a later will should be ruled through and marked ‘Revoked by will dated _ presently held at _’. The revoked will should be retained by the testator or on the will draftsperson’s file. The old will should not be destroyed without taking instructions from the testator, particularly if there is any doubt about the testator’s capacity or the validity of the new will. The revoked will may be relevant in family provision proceedings. The question whether a revoked will should be retained or destroyed is not straightforward, and the testator’s instructions should be sought. States in most jurisdictions give beneficiaries, creditors and

others the right to inspect the will (including revoked wills) of a deceased person after their death: see [1.17]. If a solicitor holds the will, they must produce it on request regardless of whether they have instructions to do so from the executor. This should be taken into account when obtaining instructions as to whether a prior will is to be retained.

Advice and suggestions to clients Matters to raise with clients 2.84 There are several matters which should be specifically raised with clients. These matters are discussed in the following paragraphs. They include giving the client Form 2.06 Suggestions to Clients; mentioning the testator’s right to revoke the will; the need to review the will regularly; revocation by marriage; the effect of divorce on the will; a warning against making informal testamentary documents; and the value of enduring powers of attorney. These matters are discussed in the following paragraphs.

Suggestions to clients: to be given to all clients 2.85 Whether or not the will is executed under the supervision of the solicitor, a list of suggestions to clients along the lines of Form 2.06 should be given to every client who makes a will. You are welcome to copy these suggestions to give them to clients.

Regular review of will: need for 2.86 During the interview with the client, advise her or him that the will should be reviewed whenever a relevant change occurs in the family, in economic conditions or in the social security or taxation laws. In any case the will should be reviewed every two or three years. Complex or difficult wills and wills of persons in blended families should be reviewed more frequently.

Right to revoke 2.87 Point out to the client that the will may always be revoked, and that the will does not represent a binding commitment to a particular scheme of distribution. (Contracts to leave property by will and contracts to make mutual wills limit the testator’s ability to control the devolution of her or his property. Such contracts are considered in Chapter 33.) [page 54]

Revocation by marriage; effect of divorce on a will 2.88 You should tell the client that subsequent marriage will automatically revoke the will.5 In Queensland the registration of a relationship pursuant to the Relationships Act 2011 (Qld) revokes a will.6 In Tasmania the registration of a deed of relationship pursuant to the Registered Relationships Act 2003 (Tas) revokes a will.7 For further discussion on revocation by marriage, see [8.1]ff. In all jurisdictions dissolution of the marriage revokes part or all of the will.8 In Queensland and Tasmania termination of a registered relationship revokes part or all of the will.9 For further discussion on this topic, see [8.6].

Warn clients against creating informal documents which may be testamentary in nature 2.89 Lay people who have made formal wills are sometimes inclined to put their later testamentary intentions into informal documents. This can present problems when those documents are found and have to be presented to the court after the testator’s death. The problem arises — are these documents intended to be testamentary? Resolution of the question is likely to involve litigation, expense and delay. Lay testators making a formal will should be warned against writing letters or documents which

could be interpreted as being testamentary: they should be told that if they later want to add, for example, a list, or a letter to executors, they should mark the document: ‘This [letter or list or document] is not testamentary, is not binding on any person and creates no legal or equitable obligation’: see [2.53] (mandatory or precatory words), and Form 31.10, where the expression is formal and an alternative is given. The testators should further be advised that if they do wish to make a further testamentary document, they should seek help from a professional will draftsperson. See further [2.53], [31.16] (how dispensing provisions affect the will draftsperson).

Enduring powers of attorney 2.90 Clients should be advised about the general value of an enduring power of attorney, which allows the donor of the power (or ‘the principal’) to appoint an attorney to manage her or his property and/or personal affairs and see that the donor’s health directives are carried out, in the manner and at the time that the donor directs: see further [5.5]–[5.9]. [page 55]

Miscellaneous concerns: charging for wills; dispute mediation; deed of family arrangement; late changes to law; discovery of errors Charging for wills 2.91 Many solicitors charge below cost for wills. There are a number of reasons for this, including the view that will drafting is a public service, that it is a service to clients who are valued for other aspects of their business or that it is a loss leader and the

solicitor will receive proper remuneration later when the solicitor is (you hope) asked by the executors to administer the estate. The practice of undercharging for will drafting may not be a good one. Cost-conscious firms may tend to put pressure on will draftspersons to do wills very quickly or ‘not to waste time on them’, and poorly drafted wills are the result. The risks of professional liability are becoming greater and a will should be given as much time as it takes to draft it well. Taking instructions for a will seldom takes less than 45 minutes, and usually takes an hour or more. After that the will has to be prepared by the person entering the details electronically, checked by the solicitor and another solicitor, corrected, and the final document made ready for signature. Then it has to be read by the client, normally in the presence of the solicitor, and the client’s questions have to be answered. Finally, the will has to be signed and witnessed, copied, bound and given to the client. Altogether, on average, wills seem to take about two hours each, although some solicitors might contest this. Some wills take much longer. Whether or not you can charge for that amount of time, you should not try to reduce the time by skimping on taking instructions, or on good drafting, checking, or answering the client’s questions. In relation to liability in negligence for delay in preparing a will, see [2.2]; in relation to liability for textual errors, see [2.71]; in relation to the witness–beneficiary rule, see [2.74]; and in relation to the solicitor retaining the will, see [2.82].

Disputes — mediation of testamentary contests 2.92 No form for dispute mediation is offered because the inclusion of such a provision in the will suggests that the testator (or the will draftsperson) expects a will contest. However, if after the testator has died a contest arises, it seems that there are reasons in favour of mediation rather than litigation. Richard Harris, in ‘The Mediation of Testamentary Disputes’ (1994) 5 ADJR 222, remarks that there is much to be said for using

mediation rather than litigation as the preferred method of resolving testamentary disputes. Among his reasons are the following: involvement of the disputants themselves in the process is more likely to lead to a successful and lasting resolution; the fact that the disputants are likely to be close family members suggests that mediation is likely to be appropriate; and [page 56] relationships are important, and a mediation process which values family relationships and seeks to preserve them is likely to be better than one based on adversarial principles. We might add that litigation is likely to be an expensive, public and wasteful method of resolving a testamentary dispute. It may be worthwhile for the testator to discuss the estate plan with the family, particularly if the plan includes elements or provisions that are likely to cause distress or disappointment. The question is a difficult one, and is discussed in [14.1]–[14.3].

Deed of family arrangement; disclaimer or renunciation of benefit 2.93 Any beneficiary under a will (Estate of Simmons (1990) 56 SASR 1) or on intestacy (R v Skinner [1972] 1 NSWLR 307) is free to disclaim or renounce the benefit. See also Mostyn v Mostyn (1989) 16 NSWLR 635; Halsbury’s Laws of Australia, LexisNexis Butterworths Online, [395-1205], accessed 29 April 2016. This may be done for various reasons, such as a decision not to take anything from the testator on principle, or in order to cause a partial or total intestacy which may better suit the person disclaiming, or to escape burdensome provisions (such as a life estate) in the will. On such disclaimers, see IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New

Zealand, 2nd ed, Law Book Co, Sydney, 1989, [3101] and [3203]; and The Australian Encyclopedia of Forms and Precedents, LexisNexis Butterworths Online, Compromises and Releases ‘Family Arrangements’ Family arrangement varying trusts declared by will Form 110.265, accessed 29 April 2016. Forms 2.07 and 2.08 of the present book offer disclaimers. Form 26.07, used with a life estate or right of occupation, is intended to make a disclaimer or deed of family arrangement easier. An inheritance will enlarge the beneficiary’s assets, and so affect that person’s claim for social security benefits. Centrelink will not allow a beneficiary to keep her or his estate small simply by disclaiming an inheritance — the disclaimer will be treated as a gift from the beneficiary and be subject to the social security gifting provisions. It follows that Forms 2.07 and 2.08 cannot be used for this purpose. Once the testator has died, only limited possibilities remain for reducing the impact of the assets tests on beneficiaries. A one-off inheritance may be exempted from the income test: see [2.27]. Centrelink should be consulted. A person should take advice before disclaiming a benefit. Disclaimer may be a disposal for tax, family or bankruptcy law purposes, and may have social security implications.

Change in the law after will made 2.94 In Re the Will of Macaudo [1993] 2 Qd R 269 at 272, Derrington J held that a testator was deemed to know the law affecting her or his will and also any subsequent change in the law, so that where the testator did not alter the will after such a change the will had effect according to the new law. [page 57]

We suggest that this cannot mean that a solicitor is obliged to inform clients that there has been a change in the law which may affect their wills — but this might be different if the change of law had been mooted at the time of drafting.

Late discovery of errors 2.95 If, after execution — even long after execution — the solicitor discovers that the will is faulty in some way, the solicitor must contact the client to have it rectified. This should be at the solicitor’s expense: see R Mortensen, ‘Solicitors’ Will Making Duties’ (2002) 26 Melbourne UL Rev 60 at 72.

FORMS FORM 2.01 Example of instructions for will: illustrates the structure of a simple will: will of husband where corresponding wills are being prepared for a husband and wife with children, where neither has a child from a previous relationship [Instructions from the drafting solicitor to the person entering the details electronically could take a form similar to this. These instructions are in effect the ‘plan’ for the will. See [2.41]ff.] [Both testators want to make a gift to Peter Pace, friend of the testator John William Jones. The gift is to be paid on the death of the survivor of John William Jones and Ann Jones — that is, the gift is to be paid once only. The testators used Form 19.01 to avoid unintentionally doubling the gift if they were to die within 30 days of each other.] [Insert interim will provision if desired: see [2.3].] [# indicates a place in the relevant form for the will draftsperson to insert information.] Table 2.1: Examples of instructions (or plan) for will Clause of will

Selected precedent (Form)

Changes to be made to precedent

3.01

# JOHN WILLIAM JONES # 21 Doe Street, Parkes # Australian Capital Territory, 2600, Salesman

1.

4.01

2.

6.01

3.

6.02

4.

7.07

# ANN JONES (‘my wife’) # MICHAEL JOSEPH SMITH # 28 Dull Place, Campbell, in the Australian Capital Territory, 2600

[page 58]

Clause of will

Selected precedent (Form)

Changes to be made to precedent

5.

10.02A

# my wife # omit [Use first subclause (2)] # my wife # PETER ROBERT JONES # 7 Bright Close, Chifley, in the state of New South Wales, 2036

6

11.01

7.

18.01

(a)

19.01

# # $10,000 # my friend PETER PACE # 123 Friends Place, Curtin, in the Australian Capital Territory 2605

(b)

27.01

# # the residue of my estate # my wife

(c)

27.04

# # subject to the preceding trusts: # the residue of my estate # omit # omit # omit

(d) (i)

27.05

# # subject to the preceding trusts: # the residue of my estate # and the brothers and sisters of my wife # omit # omit

(d) (ii)

27.08

# omit

# omit (e)

28.01

8.

7.05

# # subject to the preceding trusts: # the residue of my estate # the ABCD (NEW SOUTH WALES) PROPERTY TRUST of 10 Keating Street, Forbes in the state of New South Wales 2889 #

[page 59]

9.

29.01 31.01

# 16

32.01

# 16 # JOHN WILLIAM JONES

FORM 2.02 Example will drawn according to the instructions in Form 2.01 [Form 2.02 contains the completed will that would result if the instructions in Form 2.01 were expanded into a complete will.] LAST WILL THIS WILL is made by me JOHN WILLIAM JONES of 21 Doe Street, Parkes, in the Australian Capital Territory, 2600, Salesman. 1. I revoke all previous testamentary acts. 2. Where: (a) (i) one or more persons have died; (ii) a person has died and one or more deaths are presumed; or (iii) two or more deaths are presumed; and (b) the order of deaths, whether proved or presumed, is uncertain; this will is to be construed as if the deaths, whether proved or presumed, had taken place in the following manner: first, the oldest; then, after a period of 1 day, the second oldest; then, after a period of 1 day, the third oldest; and so on to the youngest. 3. (1) Where any beneficial disposition of property is made to a person who does not survive me for a period of 30 days the disposition is treated as if that person had died before me. (2) (i) In this will, any gift which depends on the beneficiary surviving me by a specified period or attaining a specified age is contingent and does not vest in the beneficiary unless and until he or she has survived the specified period or attained the specified age; and

4.

5.

(ii) Income produced by the gift between my death and vesting of the gift accumulates to the gift. If ANNE JONES (‘my wife’) does not survive me, I appoint MICHAEL JOSEPH SMITH of 28 Dull Place, Campbell in the Australian Capital Territory, 2601, guardian of my minor children. (1) I appoint as my executor and trustee my wife. (2) If my wife refuses or is unable to act as my executor and trustee I appoint as my executor and trustee PETER ROBERT JONES of 7 Bright Close, Chifley, in the state of New South Wales, 2036. (3) ‘My executors’ means the persons named or referred to in subclauses (1) and (2) while acting, and my personal representatives and trustees for the time being. [page 60]

6.

7.

(1) My executors or any of them may, in addition to accepting any gift given to them in this will, apply to the court for commission for their pains and trouble. (2) Gifts to persons who are named as my executors are not dependent on those persons acting as executors or trustees. My executors hold my estate on trust: (a) to give $10,000 to my friend PETER PACE of 123 Friends Place, Curtin, in the Australian Capital Territory, 2605; (b) to give the residue of my estate to my wife; (c) subject to the preceding trusts: (i) subject to subparagraph (ii), to divide the residue of my estate equally among those of my children who survive me and have attained or attain their majority; (ii) if a child of mine has already died or does not survive me or dies before attaining a vested interest, leaving children who survive me and have attained or attain their majority, then those children having attained or on attaining their respective majorities take equally the share which their parent would otherwise have taken; (d) subject to the preceding trusts: (i) subject to subparagraph (ii), to divide the residue of my estate equally among those of my brothers and sisters and the brothers and sisters of my wife who survive me and have attained or attain their majority; (ii) if a person referred to in subparagraph (i) has already died or does not survive me or dies before attaining a vested interest, leaving children who survive me and have attained or attain their majority, then those children having attained or on attaining their respective majorities take equally the share which their parent would otherwise have taken; (e) subject to the preceding trusts: (i) to give the residue of my estate: (A) to the ABCD (NEW SOUTH WALES) PROPERTY TRUST of 10 Keating

8.

Street, Forbes in the state of New South Wales 2889; (B) if the gift in (A) cannot take effect completely or at all, to the extent that it cannot take effect: to the charitable organisation or organisations in Australia which my executors in their discretion consider most nearly fulfils or fulfil the objects I intend to benefit in the share or shares my executors think fit; (ii) the receipt of the treasurer, secretary or public officer for the time being of a beneficiary under this provision is a sufficient discharge to my executors in respect of a gift to that beneficiary. (1) Whether or not in so doing they exhaust my estate, my executors may make loans: (a) whether secured or unsecured; [page 61]

9.

(b) on interest or interest free; (c) on whatever terms my executors (without being liable for loss) think fit; to any person caring for any of my children (whether as guardian or otherwise) (even though that person is also my executor) from the presumptive share of the trust fund of that child or those children. (2) I wish my executors to exercise their powers so as to ensure (so far as seems to them reasonable having regard to the funds at their disposal and other relevant matters) that any person caring for any of my children (whether as guardian or otherwise) does not suffer in the course of caring for those children a financial burden or loss (whether or not it is incurred strictly within her or his duties as carer or guardian), and I trust that the carer will accept it as my wish that the powers be exercised in this way. (1) My executors may in their discretion: (a) exercise any powers given to them by law; (b) exercise the powers of a trustee for sale in respect of any property in my estate and my executors may: (i) without being liable for any loss (including liability for taxation on capital gain) caused by so doing, postpone sale; (ii) without being liable for any loss (including liability for taxation on capital gain) caused by so doing, retain in its form of investment at my death any part of my estate, even though it is wasting, hazardous or reversionary; (iii) sell, by public auction or private sale, and for that purpose may extend credit; (c) determine whether receipts or outgoings are capital or income, or partly capital or income, so as to bind the beneficiaries, even though the receipts are from a company or corporation that has made a decision on the matter; (d) apply for the maintenance, education (including travel to broaden the mind), advancement or benefit of a beneficiary the whole or any part of the capital and income of that part of my estate to which that beneficiary is entitled or

may in future be entitled; (e) for the purposes of paragraph (d): (i) make a payment or payments to a minor beneficiary’s parent or guardian or a person with whom the minor beneficiary resides; and (ii) accept the receipt of that payee as a sufficient discharge; (f) make loans to beneficiaries: (i) secured or unsecured; (ii) on interest or interest free; and (iii) on whatever terms; [page 62] (g) acquire or lease property for occupation, use or enjoyment by a beneficiary (whether alone or with some other person or persons); (h) do any one or more of the following: (i) concur in any scheme or arrangement involving or affecting the shares, securities, control, property or undertaking of; (ii) vote in; or (iii) apply for and accept directorship of any company or corporation in which my estate is or may become interested or concerned; (i) apply for, accept or take up securities of any description or denomination, bonus shares or other rights or benefits made available by a company or corporation in which my estate is or may become interested or concerned; (j) borrow money, either with or without giving security, and enter into any mortgage, charge, bill of sale, lien or security over any part of my estate; and money borrowed is to be treated as part of my estate or trust property, as the case may be; (k) lease any part of the real or personal property in my estate: (i) for the periods and upon and subject to the covenants and conditions which my executors think fit; and (ii) either with or without provisions for renewal or otherwise; (l) accept surrenders of leases or tenancies of my estate or any part of it; (m) maintain, repair, improve, develop, alter, renovate, pull down, erect or reerect any part of my estate; (n) maintain, take out or participate in any one or more of the following: (i) insurance policy against risks affecting my estate; (ii) life insurance policy in respect of any person; (iii) policy or contract of health or accident insurance or benefit in respect of any person; (iv) friendly society, trade union or association of employees benefit scheme in respect of any person;

(v) superannuation or pension scheme in relation to any person; and (vi) funeral benefit or payment scheme in relation to any person; (o) without the consent of any beneficiary, partition or appropriate any part of the real or personal property of the estate in or towards the satisfaction of a legacy or a share of any person or persons in my estate, and in doing so the following provisions apply: (i) the value of any such property is that agreed by those of my beneficiaries affected or, if my executors are satisfied that no value can be agreed in this way, the value is that determined [page 63] by an independent valuer appointed by my executors for the purpose; (ii) my executors need not take into account any differences in value of particular property to particular beneficiaries other than the value of the property as decided in subparagraph (i); (p) determine (in the event of my executors disposing of or being deemed to have disposed of property) from which part or parts of the capital or income of my estate they will pay any income tax liability flowing from the disposal or deemed disposal; and for that purpose they may determine what is capital and what is income, but I express the wish that, if it seems appropriate to my executors to do so, proceeds of such a disposal be resorted to in the first instance; (q) identify, segregate into separate income accounts and allocate separately different sources and types of income, and record this in the books of account; (r) carry on, either alone or in partnership with any person or persons, the whole or part of any trade or business in which I am engaged or interested at my death; (s) delegate a power or function, and execute a power of attorney or other instrument to make the delegation; (t) appoint and empower nominees to act and hold property for my executors; and appoint custodians of any property and documents (including documents relating to property) in my estate; (u) for any reason, for instance to allow an early distribution of residue, set aside out of my estate a fund sufficient to meet all debts, charges and other liabilities of my estate. If, having discharged all such debts, charges and other liabilities a balance remains, that balance does not form part of the residue of my estate, but is to be distributed as if it were part of the residue. (2) I express the wish that my executors make available and give to those of my beneficiaries who inherit any property all documents relevant to that property or the assessment of tax relating to that property.

DATED The testator signed in the

2016

presence of both of us being present at the same time, and we attested his signature in the presence of him and of each other Witness 1: .................................. Full name: Occupation: Address:

Testator Witness 2: .................................. Full name: Occupation: Address: [page 64]

End of will [The following appears on a separate page to make the backing sheet/cover:] DATED .........................2016 LAST WILL of JOHN WILLIAM JONES [name of solicitor] [firm’s name address DX telephone no fax no email address] FORM 2.03 Framework of a will [This ‘Framework’ lists the selection of most used precedents (those in Appendix A) as well as some other precedents, and comments briefly on when they should be used, and when they should not be used. Further comments on the use of Appendix A are offered in [2.42]ff.] [Form numbers marked with an asterisk (*) are included in the selection of most used precedents in Appendix A.] Table 2.03: Framework of a will Form name and content

Form number

When to use the form

Commencement and testimonium

*3.01

Always use.

Heading, etc for wills for Australia and a foreign country

3.02

Consider if testator owns foreign property. Use 10.06A and 10.06B

to appoint executors. Revocation

*4.01

Always use (except in a codicil). Be careful where there is an Australian and a foreign will.

Disposal of the body

*5.01–5.07

Use only if instructed.

Body to be available for anatomical, therapeutic, medical or scientific purposes

*5.05

Use if instructed.

[page 65]

Commorientes (death and survivorship) (order of deaths)

*6.01

Always use this form.

Beneficiaries required to survive the testator by 30 days

*6.02

We recommend that this be used in every will except where schedules are used for wills of spouses or partners in blended families, that is, where Form 9.01 is used: see Form 9.01 and [9.3]. But if you are excluding the 30day survivorship provision, use Form 6.03.

Exclusion of requirement that beneficiaries survive the testator by 30 days

*6.03

In wills of spouses or partners, if Form 9.01 is used to set up schedules in one will, use Form 9.01 or this form in the other will.

Adopted children excluded

*7.01

Use only if so instructed.

Exclusion of foster or stepchildren

*7.02

Use only if so instructed.

Ex-nuptial children excluded

*7.03 *7.04

Use one of these two forms if so instructed. See Chapter 7 for the particular problems in New South Wales.

Carers for, or guardians of, minor children not to suffer financial hardship

*7.05

Consider using if minor children may be left orphaned.

Guardians appointment

*7.06 *7.07 *7.08

Use one of these if testamentary guardian is to be appointed. Generally exclude joint guardianship by providing that the

appointment only operates if there is no surviving parent. Contemplation of marriage

*8.01 *8.02

Always use one of these if marriage is contemplated; or suggest the use of one of them if the client is in a relationship where the partners might later marry.

[page 66]

Form name and content

Form number

When to use the form

Schedules for spouse or partner

*9.01

Need not be used for simple corresponding wills of spouses. Use if there is a blended family (a spouse or partner and children of the testator from another relationship), and the provisions are complicated. It is risky to give the whole estate to a spouse or partner if there are children of the testator who are not the children of the spouse or partner. The spouse or partner may eventually leave nothing to the testator’s children: see [9.11] and [26.1].

Appointment of executors

*10.01 *10.02A 10.02B *10.03 *10.04

Always use one of these unless the Public Trustee or a trustee company is to be appointed sole executor. May be used if there are numerous executors.

Appointment of sole executor

*10.05

Do not use unless, for some particular reason, the Public Trustee or a trustee company is to be appointed sole executor.

Gift to executor not to exclude right to claim commission; gifts not dependent on executor acting as executor

*11.01 *11.02 *11.03

Always use Form *11.03 (or Form *11.01) if executors are also beneficiaries (unless otherwise instructed).

Professional charges clause

*11.05

Use if appropriate.

Gift of whole estate to executors on trust

*18.01

Always use (except in the testamentary discretionary family

trust Form 25.01). Legacies of money; specific gifts: legacies and devises

*19.01–23.04

Use sparingly, and only if necessary to carry out the testator’s overall scheme of distribution.

Legacy of money in wills of spouses, worded to avoid double gift danger

*19.02

Avoids the danger of doubling the gift of a pecuniary legacy in wills of spouses or partners.

[page 67]

Gift of personal effects

*20.11

Use if the testator is giving the residue of the estate to a person other than the testator’s partner or the person with whom the testator is sharing a residence: see [20.13].

Substitution

*27.08–27.16

If a legacy, devise or gift of residue or the whole estate is given, substitution should usually be expressly excluded or expressly included. Forms *27.08 and *27.12 are the preferred forms.

Exclusion of statutory substitution

27.17

Depending on intention: see [20.5], [27.12]. May be used with legacy, devise or gift of residue or the whole estate.

Annuities and protective trusts

24.01–24.10

Use sparingly and only if there is a clear need, eg use for elderly, weak or incapable beneficiaries whose finances must be controlled, supervised or protected. Beware of capital gains tax. Consider effect on Centrelink benefits.

Testamentary discretionary family trust

25.01 and 25.01A

Use where it is important to give trustees freedom to distribute or retain trust assets; for the benefit and protection of beneficiaries and in the context of taxation, including capital gains tax. Use where a comprehensive

discretionary family trust is needed. Discretionary trust for person with disability

25.05

May be used for gift to person with disability.

Life interests and rights of occupation

26.01–26.13

Use sparingly, and only if there is a clear need, eg for a surviving spouse where the testator has children of another marriage who must be protected: see [9.11]. Beware of capital gains tax.

[page 68]

Form name and content

Form number

When to use the form

Gift of whole estate or of residue to husband or wife or partner

*27.01

Use if the whole estate or the residue is to go to spouse or partner. It is risky to give the whole estate to a spouse or partner if there are children of the testator who are not the children of the spouse or partner. The spouse or partner may eventually leave nothing to the testator’s children: see [9.11] and [26.1].

Gift of whole estate or of residue with no provision for substitution

*27.02

Use for gift of residue to stranger, eg friend or partner who has no children or whose children are not to substitute for the beneficiary.

Residuary gift to named persons in equal shares with substitution

*27.03

Use only if so instructed or a particular reason exists. Do not use for children of the testator unless some child, perhaps exnuptial, must be excluded without being named. Form *27.03 is used with either Form *27.08 or Form *27.12.

Gift of whole estate or of residue to children

*27.04

Always use if testator has or may later have children, but not if: only named children are to share equally; in this case use Form *27.03 with Form *27.08; or

residue is to be unequally divided between children; in this case use Form *27.07. Wills of farmers and business people raise special problems: see [29.16]–[29.20]. Omission of a child or unequal division between children can give rise to family provision claims: see Chapter 14.

[page 69]

Residuary gift to siblings of testator and siblings of spouse or partner

*27.05 *27.06 *27.08

Unless contrary instructions are given, use either Form *27.05 or Form *27.06 for a gift to siblings. Use Form *27.08 together with Form *27.05, or use Form *27.06 alone. Examples of contrary intentions include: residue is to go to named persons equally; in this case use Form *27.03 with either Form *27.08 or Form *27.12; residue is to be divided unequally; in this case use Form *27.07; or residue is to go to charity; in this case use Form *28.01 or another form from Chapter 28.

Residuary gift to named persons in unequal shares

*27.07

Use only if so instructed.

Residuary gift to charity or incorporated or unincorporated association

*28.01–28.09

Always use one of these to avoid possible intestacy unless otherwise instructed.

Gift to named charity or charities in executors’ discretion

*28.02B

Use if desired.

Powers of executors and trustees

*29.01

Always use. May be modified if the testator so wishes.

Power to carry on business

29.03 or 29.04

Use if testator carries on an unincorporated business. (If the business is incorporated, proper

arrangements must be made for the succession of the business: see [2.12] and Form 2.09.) Codicil

*30.01

Do not use unless circumstances demand it.

Standard attestation clause

*31.01 *31.02

Always use one of these unless a special attestation clause is required.

Special attestation clauses

31.03–31.08

Use one of these if required.

Cover/backing sheet

*32.01

Always can be used if considered necessary.

Contracts to make wills; mutual wills

33.01–33.03

Use very sparingly.

[page 70] FORM 2.04 Estate Information Manual [To be completed by the testator at home. See [2.5].] [Many of the categories in this manual will have to be expanded to allow for more alternatives for the client to fill in.] THIS ESTATE INFORMATION MANUAL IS A SOURCE OF INFORMATION FOR THE ASSISTANCE OF MY EXECUTORS. IT IS NOT INTENDED TO BE TESTAMENTARY AND IT DOES NOT REPRESENT MY TESTAMENTARY INTENTIONS. IT DOES NOT FORM PART OF MY WILL. IT IS NOT BINDING ON ANY PERSON AND CREATES NO LEGAL OR EQUITABLE OBLIGATION. Notes to person completing this Estate Information Manual Using this manual will minimise the work, inconvenience and costs to your executors in gathering the information after your death. This information should be kept up to date. For capital gains tax (CGT) purposes, you must keep a record of every act, transaction, event or circumstance relevant to working out whether you made a capital gain or capital loss when the event occurs. These records should include: 1. the date you acquired the asset; 2. the date you disposed of it; 3. the cost associated with the transaction; 4. what you paid for it and/or what you sold it for; 5. relevant expenditure on the asset. It is suggested that this information be kept with this manual. The completed Estate Information Manual should be kept with a copy of your will. A copy of the completed manual should be kept on the solicitor’s file. Estate Information Manual

1. Date this information was last reviewed: 2. Personal details: Surname: .................................. Given names .................................. Maiden name (if appropriate): .................................. Address: .................................. Domicile (permanent place of residence): .................................. Date of birth: .................................. Place of birth: .................................. Other names or other spellings of names: .................................. Location of birth certificate: .................................. 3. Details of marriage and children: (a) Marriage 1st 2nd Date of marriage: [page 71]

Place of marriage: .................................. Location of marriage certificate: .................................. Full name of spouse: .................................. Wife’s maiden name: .................................. (b) Children living Date of Birth (i) (ii) (iii) (iv) (v) (vi) (c) Children deceased Date of Death (i) (ii) (iii) 4. Details of partner or de facto relationship and children:

(a) Relationship Date of relationship: Full name of partner: (b) Children living (i) (ii) (iii) (iv) (v) (vi) (c) Children deceased (i) (ii) (iii) 5. Family details (a) Parents (i) Given names: (ii) Surname: (iii) Maiden name: (iv) Date of birth:

1st

2nd

Date of Birth

Date of Death

Father

Mother

[page 72]

(v) (vi) (vii) (b) Brothers and sisters Given Names

6.

Married Name

Place of birth: Date of death: Place of death:

Date and Place of Birth

On death please notify immediately

Date and Place of Death

Address

Name

Address

Telephone No

7. Funeral arrangements (a) I desire: (i) To be buried/cremated (state preference): (ii) Preferred place of burial/cremation: (iii) Preferred celebrant: Address: Telephone Number: (iv) I desire the following special arrangements regarding my funeral: (b) I have made arrangements regarding payment of the cost of my funeral with the following Funeral Directors: .................................. Documents regarding same are located at: .................................. Important note: if the documentation is not found after your death and the funeral director with whom you made arrangements cannot be found, your family will pay for the funeral again with another funeral director. (c) Directions regarding use of human tissue. Although such directions may be detailed in your will, the will may not be found until too late. Next-of-kin and donee institutions should therefore be notified while you are alive, or your wishes in this regard may not be complied with. 8. Medicare and/or Medical Benefits Fund Details Medicare Member’s Name: Membership Number: Location of membership book or card: [page 73]

Medical Benefit Fund Name of Fund:

Membership Number: Location of membership card: Other health card Type of card [eg Senior’s Health Card/Pensioner Card/Veteran’s Card]: Membership Number: Location of membership card: 9. My Will Date: Location: Contact Name Address: Telephone Number: Have you made a codicil to your will? If so, state its date. It should be kept with your will. 10. Executors Name: Address: Telephone Number: Name: Address: Telephone Number: 11. My solicitor is Name of Firm: Address of Firm: Telephone Number: Email Address: 12. My accountant is Name of Firm: Address of Firm: Telephone Number: Email Address: Who attends to income tax affairs if not above?

13. My financial planner/adviser is Name of Adviser: Name of Firm: [page 74]

Address of Firm: Telephone Number: Email Address: 14. Assets (a) Home (i) Owned singly/jointly with: of (address) Location of Title Deed and Insurance Policies for house and contents: (ii) Mortgaged Yes/No: To whom (if relevant): Name: Address: Telephone Number: (b) Bank, building society or credit union accounts Bank, building society, credit union

Branch/ BSB Number

Account No.

Account Name

(c) Superannuation fund (i) Name of fund Membership Number: Contact person: Address: Telephone Number: Have you nominated a beneficiary of your superannuation death benefits?

Location of Pass book/ ATM card

Yes/No If Yes, who have you nominated? (ii) Name of fund Membership Number: Contact person: Address: Telephone Number: [page 75]

Have you nominated a beneficiary of your superannuation death benefits? Yes/No If Yes, who have you nominated? (d) Employer details Name of employer: Address: Contact person: (e) Life insurance details Company

Policy No

Type of Policy (life/trauma etc)

Owner of policy

Life insured

Nominated Beneficiary

(f) Shares/securities in companies Are the holdings on CHESS? Yes/No: If yes, please advise details of Sponsoring Broker. Name: Address: Telephone Number: Contact: Company

No. Shares/Securities

Type of Shares

Security Reference Number

Location of Holding Statements

(SRN) or Holder Identification Number (HIN)

(g) Units in managed funds Are the holdings on CHESS? Yes/No If yes, please advise details of Sponsoring Broker. Name: Address: Telephone Number: Contact: [page 76]

Company

Number of units

Investor/Account Number

Location of Holding Statements

(h) Units in property/other trusts Are the holdings on CHESS? Yes/No If yes, please advise details of Sponsoring Broker. Name: Address: Telephone Number: Contact: Company

Number of units

Investor/Account Number

Location of Holding Statements

(i) Monetary investment details (cash management trusts,

term deposits, income securities, etc) Are the holdings on CHESS? Yes/No If yes, please advise details of Sponsoring Broker. Name: Address: Telephone Number: Contact: Name of bank/ institution

Account Number

Type of investment (CMT, term deposit, income security)

Amount invested

(j) Motor vehicle Type: Location of Certificate of Registration: Insurance Details: Location of Insurance Policy: Hire Purchase/Leasing details: Registration papers: [page 77]

(k) Private company details Name of company: ACN/ABN of company: Registered office: Names and Addresses of Directors: Names and Addresses of Shareholders: (l) Family discretionary trust/unit trust details (i) Name of Discretionary Trust: Name and Address of Trustee (if Corporate Trustee, Name, ACN/ABN of Trustee) Name: Address: ACN/ABN of Trustee (if applicable):

Name and Address of Directors of Corporate Trustee Name: Address: Location of Trust Deed: (ii) Name of Unit Trust: Name and Address of Directors of Corporate Trustee Name: Address: Name, address and ACN/ABN of Trustee Name: Address: ACN/ABN of Trustee: Location of Trust Deed: Names and addresses of Unitholders Name: Address: Name: Address: (m) Other assets (Examples include interest in a deceased person’s estate; interest in a partnership; property over which you have a power to appoint; livestock, crops; farming equipment; other real estate; debts due to you; stock in shop or business; goodwill.) [page 78]

Type

Location

Owner/owners

Purchase price/date purchased

Location of title documents, relevant insurance policies and any other relevant details

(n) Assets legally but not beneficially held: (Includes property held on trust, or as executor of an estate.) Type

15.

Location

Identify settlor/testator

State interest and other trustees/executors

Location of title documents, Relevant insurance policies and any other relevant details

Liabilities Secured debts Property on which owed

To whom owed

Location of relevant documents and details

Unsecured debts To whom owed

Location of relevant documents and details

Guarantee details Name

Address

Telephone number

Location of guarantee document and details

[page 79]

16. Business Succession Agreements; powers to appoint

controller, appointor or custodian of family trust; powers to appoint beneficiaries under a will Give relevant details: 17. Safe Deposit Location of Safe Deposit: 18. Pension Details Name of Fund: Address of Fund: Telephone Number: Membership Number: Have you nominated a preferred beneficiary of the pension/lump sum in the event of your death? Yes/No. If Yes, please set out nominee, name and address. Name: Address: 19. Power of Attorney (including Enduring Power of Attorney) details Name of holder of the power of attorney: Address: Telephone Number: Location of Power of Attorney document: 20. Guarantee details Name: Address: Telephone Number: Location of Guarantee document: 21. Additional details .................................. Signature [Place the following paragraph on a new page. The note is identical to that at the head of the document. It is repeated to make the non-binding nature of the document abundantly clear to the testator.]

ESTATE INFORMATION MANUAL Note: This estate information manual is a source of information for the assistance of my executors. It is not intended to be testamentary and it does not represent my testamentary intentions.

It does not form part of my will. It is not binding on any person and creates no legal or equitable obligation. A copy of the completed Estate Information Manual is kept on the solicitor’s file, and the client retains a copy with the client’s copy of the will. [page 80] FORM 2.05 Instructions for signing your will The usual practice in this office is to insist that the will is executed in the presence of a member of our firm. As you have nevertheless advised us that you wish to execute your will in the absence of any member of our firm, we append these instructions for signing a will. To be sure your will is valid it is very important that you first read these instructions carefully from beginning to end and then follow them exactly. Please telephone our office if you have any questions. Read the will carefully to make sure that you know and approve its contents. Please do not make any alterations to the will. If the will contains errors or does not correctly reflect your wishes, please contact us. We have sent you a copy of the will marked ‘Copy will — do not execute’ for your records. Please do not sign it or any copy. Witnesses 1. You must have two (2) witnesses. 2. The witnesses must both be competent to give evidence in court, and it is prudent that they both be at least 18 years old. 3. A witness must not be a person who is left anything in your will (that is, a beneficiary). 4. A witness must not be the husband or wife of a beneficiary, or engaged to marry a beneficiary. Signing the will 1. Read your will through very carefully to be sure that every page is there and that the will is correct in every detail. 2. You and your witnesses should all use the same pen throughout. 3. The pen may be either biro or ink. It should be a blue pen. Do not use any type of pen which can be erased. 4. You and your witnesses must all be present during the entire process of signing, and all persons present must watch each signature being written. Clear a space of time so that interruptions can be avoided. 5. You do not have to tell your witnesses the contents of the will. 6. Be absolutely sure that you sign your own will, and that each page is a page of your own will and not that of another person. 7. Fill in the date in the space provided. 8. Using your normal signature, sign the will above the word ‘Testator’ (male) or ‘Testatrix’ (female) at the end of the will.

9.

The first witness must then sign at the end of the will immediately below the attestation clause in the space provided, and add her or his full name, occupation and address. Then the second witness must sign alongside the signature of the first witness in the space provided and add her or his full name, occupation and address. 10. The testator or testatrix must then sign using her or his normal signature at the bottom of each of the other pages of the will, and then each witness should sign, using normal signatures, at the bottom of each of the other pages of the will, near the signature of the testator or testatrix. [page 81] 11. Please read the attached ‘Suggestions to clients’, especially the part headed ‘After signing the will’. [firm’s name address DX telephone no fax no email address] FORM 2.06 Suggestions to clients [To be given to all testators. See [2.84], [2.85].] SUGGESTIONS TO CLIENTS General notes 1. Capital gains tax. You are required by s 121-20 of the ITAA 1997 (Cth) to keep records in relation to those of your assets which are subject to capital gains tax. The records, which must be in English, must, broadly, enable ready ascertainment of: (a) if you acquire an asset: (i) the date of acquisition; (ii) the cost base to you (purchase price and other costs in buying, eg stamp duty); and (b) if you dispose of an asset: (i) the date of disposal; (ii) the cost base to you (purchase price, costs in buying, improving and selling); and (iii) the sale price or consideration in respect of the disposal. You should therefore maintain a list of significant assets, directed at meeting these requirements, and that list should be kept with the copy of your will to simplify the task of your executors. The way in which this will is drawn, or the way in which you arrange or conduct your affairs, may affect the incidence of capital gains tax. You should discuss these questions with your accountant or tax adviser.

2.

3.

Pension entitlements. A gift under your will to someone who receives a pension (or who may become entitled to a pension) may have the effect of increasing their income or their assets, and so reducing their entitlements, or disentitling them altogether. This matter is complex. You should consult a specialist about it. Property you cannot give by will (a) Jointly held property. This passes automatically to the surviving joint owner (or owners) on the death of the first dying joint owner — it does not form part of the estate of the first person dying. (If you own property with another person you may hold it either as ‘joint tenants’ or as ‘tenants in common’. It is [page 82]

easy to confuse the two, and it is important to be sure what type of tenancy you have in the property. Joint tenancy and tenancy in common are described more fully below.) (b) Property held in trust. This passes to or is held for the beneficiaries of the trust according to the terms of the trust. (c) Shares. Certain shares in private companies cannot be given by will. (d) Partnership property. Your interest in partnership property may be given by will, although partnership property itself cannot be given by will. (e) Superannuation. Your superannuation arrangements may not entitle you to dispose of your superannuation assets by your will. The rules differ from scheme to scheme — you should discuss the matter with the administrators of your superannuation fund. (f) Proceeds of life insurance policies. If the owner of the policy has nominated a beneficiary of the policy, the nomination takes precedence over the terms of the will. It follows that, where a nomination is made, the proceeds of the policy do not form part of the estate. If you wish the proceeds of the policy to go to someone other than the nominee, you cannot do it by will: you must change the nomination. If you are not sure whether you nominated a beneficiary, or who you nominated, consult the insurance company concerned. (g) Capital guarantee deposits. Some capital guarantee deposits where a beneficiary is nominated (for example, with friendly societies, and some banks) cannot be given by will. (h) Property sold but not yet transferred. Property you have contracted to sell, but not yet transferred, cannot be given by will. (i) Property subject to a contract to leave by will. Property you have contracted to leave by will, and property subject to a mutual wills agreement, generally cannot be given by will, but the question is complicated and good legal advice is required. Joint tenancy and tenancy in common 1. Joint tenancy. Joint tenancy is a form of co-ownership in which the following principles apply: (a) There are no shares. In theory each joint tenant has the whole of the property. No party has a specific share in the property while the joint tenancy continues.

This means that the joint tenants must have equal interests in the property, and are entitled equally to its rents and profits. There can be two or more joint tenants. (b) The principle of ‘survivorship’ applies. On the death of one joint tenant the surviving joint tenant gets (or joint tenants get) the whole property automatically by operation of law, irrespective of any will made by the joint tenant who died, and irrespective of the intestacy rules. This is the principle of ‘survivorship’, which applies to joint tenancies. This gives considerable protection to a joint tenant. [page 83]

2.

It follows that property held in joint tenancy does not form part of the estate of a joint tenant who dies. This is important when deciding whether a grant of probate is needed. A grant of probate is required if the estate contains land (except in Queensland) — but this does not include property held in joint tenancy, as it does not form part of the estate. The property passes automatically, by operation of law, to the survivor or survivors without forming part of the estate of the firstdying. A grant of probate is therefore not required for transfer (to the other joint tenant or tenants) of property held by the deceased as a joint tenant. Further, a joint tenant cannot by her or his will deal with property held in joint tenancy, because the property goes automatically to the other joint tenant on the death of the testator. (c) The principle of joint tenancy applies to real as well as personal property — it applies to land as well as to property like cars, shares, furniture and bank accounts. (d) Joint tenancy is usual in marriage where the spouses want to hold the property equally and want the principle of survivorship to apply. It is not common in other situations. It would be somewhat unusual for a partner to a domestic partnership or personal relationship or even a marriage who buys a house using only her or his own money or who has contributed much more to the purchase price than the other partner to want to register the house in joint names where the interests must be equal and the purchaser cannot deal with the property by will. (e) It is possible for a joint tenant to sever a joint tenancy. Tenancy in common. Tenancy in common is a form of co-ownership in which property is held in common with others but where, in contrast with joint tenants, the share of a deceased tenant in common passes to her or his beneficiaries under her or his will or intestacy and does not automatically pass to the surviving tenant or tenants in common. (a) Tenants in common have fixed, undivided shares in the property. Tenants in common can have unequal shares (for example, two-thirds to one and one-third to the other). (b) The share belonging to a tenant in common becomes part of the estate of that tenant in common when he or she dies; that is, a testator who is a tenant in common can leave her or his share by will or, if there is no will, the intestacy rules apply to the share that belonged to the tenant in common. (There is no principle of survivorship for tenants in common.) (c) Tenancy in common is usual where two people purchase a property together,

especially where they have contributed unequally to the purchase price: the parties can own equal or unequal shares to reflect their respective contributions, and each can deal with her or his share by will. A husband and wife who purchase a property together out of what they see as the assets of the marriage often purchase as joint tenants, but if they are in a blended family it may be more appropriate to purchase the property as tenants in common. [page 84] In wills, the standard form of gift, for example of residue or the estate, to the testator’s children is to the children as tenants in common. After signing the will 1. If you have signed the will elsewhere than in our office, make two copies of the signed will. Write ‘COPY’ on both the photocopies. Please send one photocopy of the signed will to us so we can check that it has been correctly signed. The second photocopy is yours. It should be placed in an envelope, and dealt with in accordance with points (4) and (5) below. 2. Do not attach anything to the original will, not even by paperclips. 3. The original will should be kept safe, either by the solicitor who drafted it, in your bank safe deposit, with the Registrar of the Supreme Court or with the Public Trustee [in Victoria, the State Trust Trustees]. Follow the advice of your solicitor. If it is lodged with us, we cannot and do not take the responsibility of informing executors or beneficiaries of its existence or its provisions after your death. Therefore, make sure you follow points (4), (5) and (6). 4. Note on the envelope in which the photocopy of the will is contained: (a) where the original of the will is lodged. If the original is lodged with a bank, the bank’s receipt for the packet should be placed in the envelope with the copy of the will, and the safety deposit box number should be noted on the envelope. It is important that the original will be easily found when needed; (b) the date you signed the original will; and (c) the names and addresses of the executors. 5. Keep the copy in your filing cabinet with your important papers. 6. You should now tell your executor and your family where the original will is kept, and when it was deposited there. 7. It is best to keep copies of your will to a minimum, but if you do make further copies write ‘Copy’ on each page of any copy of the will. 8. Once we have told you your will has been correctly signed — but not before — please rule a line through each page of your old, revoked will, and write on it ‘Revoked by will dated _, presently held at _ ‘, and file the old will with the copy of the new will or return the old will to us for filing. 9. You may wish to make a list of your assets to assist your executor(s). It is not necessary to make this list if you have completed an Estate Information Manual, although you may wish to make a supplementary list from time to time. If you do make a list of assets it may be kept with the original will or with the copy or both, but it must not be attached to the will. No document should ever be attached to a will. It is

important that any such document be headed ‘This [letter, list, document] is a source of information for the assistance of my executors. It is not intended to be testamentary and it does not represent my testamentary intentions. It does not form part of my will. It is not binding on any person and creates no legal or equitable obligation’. A heading of this kind will ensure that there is no argument or litigation later about whether the court should treat the document as an informal will. Any actual changes to your will should be made in consultation with a solicitor. [page 85] Reconsidering your will 1. If you marry, your marriage revokes your will unless the will is expressed to be made in contemplation of that marriage. Consult a solicitor about your will if you decide to marry. Entering a domestic partnership or personal relationship can affect your will. Consult a solicitor. 2. Divorce is likely to affect your will. The matter is complex and the law is not uniform throughout Australia. Proposals for change are being considered in some states. If you are contemplating divorce, or have been divorced since making your will, consult a solicitor. Ending a domestic partnership or personal relationship can affect your will and your legal obligations. Consult a solicitor. 3. Review the copy of your will every two or three years or whenever a major event occurs in your family, your assets or the taxation laws (to make sure the will is still what you want). In particular, consult a solicitor: (a) if you change your name, or anybody named in the will changes theirs; (b) if an executor dies or becomes unwilling to act as executor or becomes unsuitable due to age, ill health or for any other reason; (c) if a beneficiary (someone who has been left something in the will) dies; (d) if you have specifically left any property which you subsequently sell or give away, or put in trust or into a partnership, or which changes its character or name. This applies particularly to specifically bequeathed shares in a company which restructures its share capital; (e) if you marry or divorce; (f) if you enter or end a domestic partnership or personal relationship; (g) if you have matrimonial difficulties; or (h) if a child of yours is born or dies, a child is adopted or fostered, an adopted or fostered child dies or a fostering terminates. 4. If you wish to change your will or revoke it or make a new will without informing your husband or wife or partner, you may do so, but you should consult a solicitor. Each of you is free at any time to revoke your will and make a new will in completely different terms without consulting or informing the other. We emphasise that if one of you does decide to make a new will without informing the other, and consults us about it, our ethical duty will prevent us from drafting the new will for you and, further, will require us to tell the other of you about your intentions.

5.

6.

In very unusual cases a person may enter a legally binding contract to make a will in particular terms, or not to change or revoke her or his will. If you are bound by contract in this way you will certainly know about it: you will have entered the contract intentionally and the fact that you did so will have been brought home to you in strong and clear terms. Do not add to or delete from the will after execution. Consult a solicitor if you want to change or revoke your will because even the simplest changes must be correctly done or they may have disastrous results. [page 86]

7.

If you later wish to make a list, letter or other document which relates to your affairs after your death, you should consult a solicitor. The danger is that it may not be clear whether the document is intended to be testamentary in nature (that is, a will or codicil), and litigation about the status of the document may result. [firm’s name address DX telephone no fax no email address]

FORM 2.07 Disclaimer of benefits under will [Modify this form if there is a partial intestacy and the person disclaiming does not wish to inherit under the will or under the intestacy rules. Use Form 2.08 for a total intestacy. The effect of such a disclaimer is drastic, and should not be done unadvisedly. See [2.93].] DISCLAIMER OF BENEFITS UNDER WILL OF [(name and address of testator)] I, [name and address], [occupation], [widow (or) widower of (name of testator)] am named as beneficiary under the will of (name of testator). I disclaim all the benefits due to me under that will. I understand that this decision is permanent and irrevocable. [Add if relevant: I will not attempt to influence the inheritance of the property now that I have disclaimed all benefits due to me.] [Add if relevant: I have renounced any claim I might have to a grant of probate or administration in relation to that will, and I have informed the appropriate Probate Office of this renunciation.] Signed: .................................. Witness: .................................. Dated: .................................. FORM 2.08 Disclaimer of benefits under intestacy [Use a modification of Form 2.07 for a partial intestacy and the person disclaiming does not wish to inherit under the will or the intestacy rules. The effect of such a disclaimer is drastic, and should not be done unadvisedly. See [2.93].]

DISCLAIMER OF BENEFITS UNDER THE INTESTACY OF … I, [name and address], [occupation], [widow (or) widower of (name of testator)] am entitled as beneficiary of the intestate estate of (name of testator). I disclaim all the benefits due to me from that estate under the intestacy law. I understand that this decision is permanent and irrevocable. [Add if relevant: I will not attempt to influence the inheritance of the property now that I have disclaimed all benefits due to me.] [page 87] [Add if relevant: I have renounced any claim I might have to a grant of probate or administration in relation to the intestacy, and I have informed the appropriate Probate Office of this renunciation.] Signed: .................................. Witness: .................................. Dated: .................................. FORM 2.09 Provision in will exercising power to appoint controller, appointor or custodian of family trust [This form is a separate clause in the will. It would be placed before the gift clauses.] [Whom the testator will choose to appoint depends on a number of factors: primarily, whom the testator wishes to take control; but also on the circumstances and the terms of the trust deed. See [2.12].] Pursuant to Clause [identify clause] of the Deed of Trust made on the [day] day of [month] [year] between [name settlor] and [name individual or corporate trustee] as trustee establishing the [name family trust] I APPOINT as [controller (or) appointor (or) custodian] on my death [identify person or persons appointed]. [(The persons appointed might be identified in a form like the following:) ‘(i) if she survives me: my wife; or (ii) if she does not survive me, those of my children [identify which children] who survive me, and if more than one, jointly.’]

1.

We are grateful for permission from LexisNexis Butterworths to use it here. Some modifications have been made to de Groot and Karas’ text.

2.

See generally the helpful article by R Mortensen, ‘Solicitor’s Will Making Duties’ (2002) 26 Melbourne UL Rev 60. ACT: Wills Act 1968 s 14A; NSW: Succession Act 2006 s 44; NT: Wills Act s 43; Qld: Succession Act 1981 s 33R; Tas: Wills Act 2008 s 58; Vic: Wills Act 1997 s 48.

3. 4. 5.

The authors are grateful to Judith Fordham and Ian Turnbull QC for suggestions which have contributed to this paragraph and other parts of the book. ACT: Wills Act 1968 s 20 (includes civil partnership); NSW: Succession Act 2006 s

12; NT: Wills Act s 14; Qld: Succession Act 1981 s 14; SA: Wills Act 1936 s 20; Tas: Wills Act 2008 s 16; Vic: Wills Act 1997 s 13; WA: Wills Act 1970 s 14. 6. 7.

Qld: Succession Act 1981 s 14A. Tas: Wills Act 2008 s 16.

8.

ACT: Wills Act 1968 s 20A (includes civil partnership); NSW: Succession Act 2006 s 13; NT: Wills Act s 15; Qld: Succession Act 1981 s 15; SA: Wills Act 1936 s 20A; Tas: Wills Act 2008 s 17; Vic: Wills Act 1997 s 14; WA: Wills Act 1970 s 14A. Qld: Succession Act 1981 s 15A; Tas: Wills Act 2008 s 17.

9.

[page 89]

Chapter 3 COMMENCEMENT AND TESTIMONIUM; WILLS FOR ASSETS IN FOREIGN COUNTRIES Introductory Notes Commencement/Testimonium 3.1 The testimonium states that the testator is authenticating the writing as her or his will. In older styles of will the commencement to the will contained the statement that the document was a will, and the name, address and occupation of the testator. The testimonium was often at the end of the will. The commencement (Form 3.01) offered here includes the testimonium, and no separate testimonium is required. In some drafting styles the date of the will is placed at the beginning of the will. There is a danger in this: the signatures are placed at the end of the will, and the date is normally written into the will at the time of execution. It is easy at the time of execution to overlook the need for dating the will. Therefore, we have provided for the date to be inserted at the end of the will, just above the attestation clause, where the space for it strikes the eye at the time of execution.

International wills 3.2

The Convention Providing a Uniform Law on the Form of

an International Will 1973 (signed in Washington on 26 October 1973) was ratified by Australia on 10 September 2014 and came into force in Australia on 10 March 2015. All Australian states and territories have now passed legislation to give effect to this Convention.1 Form 3.02 provides a precedent for when a will is made in the form of an international will. The Convention provides that a will is valid if it is made in the form of an international will, that is, if Arts 2–5 of the Annex to the Convention are met. Such a will must be made in writing (but need not be made by the testator himself) and may be written in any language, by hand or any other means. The testator is required to declare in the presence of two witnesses and a person authorised to act in connection [page 90] with international wills (in Australia, an Australian legal practitioner, a public notary of any Australian jurisdiction or any other person acting as an authorised person under the law of a state (other than Australia) that is a party to the Convention) that the document is his will and he knows the contents of it. The testator is required to sign the will in the presence of the witnesses and the authorised person, and those people then need to attest the will in the presence of the testator. There is no penalty prescribed for failing to comply with the remaining Articles in the Annex, as clarified in Art 1 of the Annex. So while Art 6 of the Annex states each person’s signatures shall be placed at the end of the will, with the testator to sign each page of the will and with each sheet to be numbered, and Art 7 states the date of the will should be noted at the end by the authorised person, failure to comply with these articles is not critical to the validity of an international will. The authorised person is also to attach to the will a certificate establishing that the obligations of the law have been complied with, but Art 13 of the Annex

explicitly states the absence or irregularity of a certificate does not affect the formal validity of the will. Form 3.03 is a precedent for the certificate drawn up by the authorised person. If a will is not valid as an international will, that does not affect its formal validity as a will of another kind.

Wills for testators with property In Australia and elsewhere 3.3 A testator who has property in Australia and in another country (B) may wish to execute one will to deal with the Australian property and another will to deal with the property in B. The Australian will would deal not only with Australian property, but rather with all property except that in B. The executors of the B will would have no power to deal with property other than property dealt with in the B will, and the executors of the A will would have no power to deal with property other than property dealt with in the A will. Reasons for such an arrangement are: 1. If there are beneficiaries in Australia who could take the Australian property, and beneficiaries in the foreign country B who could inherit the foreign property, the costs of transferring assets between jurisdictions are avoided. 2. If there is only one will for all property, there may be difficulties in having probate of the original will granted in one country and then in the other, because both countries prefer to retain the original will. The second country is also likely to require verification of the copy of the will. There may also be delays caused by translation and perhaps judicial interpretation in the foreign country. 3. ‘There may be definite tax savings as well as reduced court fees where a particular jurisdiction is dealing only with property within the jurisdiction rather than with the total wealth of the testator’: JA Brule, ‘Multiple Wills’ (1981) 5 Ests and Trs Q

200–16 at 208 (a useful and instructive article); and see Bath v British & Malayan Trustees Ltd [1969] 2 NSWLR 114. It follows that, in general, if a testator has property in Australia and in another jurisdiction, the preferred solution is to draft two wills: one (the Australian will) [page 91] to cover property wherever situated, including Australia, but excepting property in the particular foreign country concerned (for example, France); the other (the French will) to deal only with the testator’s property in France. It is essential to the effectiveness of such an arrangement that the foreign executors’ powers be expressly limited to the assets in that country; they must not have any powers in respect of property outside that country. So too the powers of the Australian executors must strictly exclude them from having any powers beyond Australia. Forms 3.04A (with 10.06A) and 3.04B (with 10.06B) achieve this result. The property that the respective wills deal with must be stated precisely in the wills. If the limits of either will are not stated and there is a general revocation clause, the risk is that the two wills will not be construed to stand together, and the later will may revoke the earlier will: see Robert Paul Schneider & Anor v Sydney Jewish Museum Inc [2008] NSWSC 1331; BC200811014 and compare Estate of Varley; Estate of Veldhuis [2007] SASC 420; BC200710243, in which the court allowed rectification of the will to give effect to the testator’s intention.

Drafting foreign will 3.4 Because inheritance law differs widely from country to country, it is unwise for an Australian lawyer who is not expert in the foreign law concerned to draft a final will to deal with

inheritance in another country. (Bear in mind that many of the states in the United States have different inheritance regimes.) The Australian will drafter should ensure that the testator has proper advice on the foreign law at the time of drafting the foreign will. Such advice may be available in Australia. If a non-expert is driven to draft a will to deal with foreign assets, the will should be an interim will only, and it should be sent to an expert in the foreign country for comment and redrafting if necessary. The foreign will should, if reasonably possible, be in the language of the foreign country. On formalities, see further [31.41]. If, as is often the case, the testator is prompted to prepare a will because he or she is about to travel to the foreign country concerned, a simple solution to the problem may be available. In such a case the will drafter can prepare the Australian will to deal definitively with the testator’s Australian property and also an interim will to deal only with the testator’s property in the foreign country — for example, the French will — which would at least convey the testator’s overall intentions in relation to the testator’s French property. While the testator is overseas, he or she can get a will drafter in the foreign country to prepare a will in the language of that country to deal with the assets in that country.

Formal validity and substantive effect of foreign will 3.5 The disposition of foreign land should be under a will which is valid according to the formalities of that country: see state and Commonwealth enactments of the Hague Convention of 5 October 1961.2 The Convention maximises the chances [page 92] of the will’s formal validity. Is the foreign country a signatory to the Hague Convention? See Appendix C. Not all signatories to the

Convention have enacted legislation to make it effective in their country, so a check is necessary. Drafting a will which is intended to operate in a foreign country presents particular difficulties. Not only must the will be formally valid, it must also be able to operate satisfactorily in the foreign country. This means that its provisions must be compatible with the law of the foreign country. Among the points at which the law of the foreign country might differ from the law in Australia are the following: 1. the foreign country may lay down that the spouse or the children of the testator take a minimum fixed share of the estate, and may provide that this cannot be reduced by will; 2. the guardianship arrangements for minor children may differ from ours; 3. the law of trusts which we have may not exist or may be different in the foreign country; 4. the identity and role of the executor may be different from that with which we are familiar; and 5. the taxation laws are likely to be very different from our own. Andrew Lang (Practical Will Drafting, College of Law, Sydney, 1993, CLE paper 93/66.1, p 44) suggests that the following sources of advice may be considered (in ascending order): 1. embassy or consular staff; 2. local lawyers with experience in the foreign country; 3. an international firm which practises in the foreign jurisdiction; and 4. a foreign lawyer who practises in the foreign jurisdiction. Forms 3.04A and 3.04B are drafted to separate completely the foreign will and the will for Australia and all countries other than the specified foreign country. If these forms are used, the ordinary general revocation clause can be used, as there is no danger that the revocation clause might operate outside the area in which that will is declared to operate: cf Re Barker [1995] 2 VR 439.

3.6 If the testator has the foreign will prepared in the foreign country and then returns to Australia, the situation would be reviewed in the light of the foreign will. In the light of all the facts and the way in which the foreign will is framed, it may become necessary to draw up a new Australian will. Once again, this will must be carefully drawn to ensure, first, that there is no property in some third country not covered by the will; and, second, that any revocation clause in the later Australian will does not affect the foreign will. As mentioned above, the ordinary revocation clause can be used if Forms 3.04A and 3.04B are used. See also [2.19]. 3.7 In some countries the calculation of death duty or inheritance tax depends on who the testator’s beneficiaries are and their relationship to the testator. The foreign country concerned may require the Australian probate to be officially registered there. In such a case it may be advisable to put all the provisions into [page 93] one will, naming the Australian provisions and all jurisdictions other than country B ‘Schedule 1’, and the provisions for country B ‘Schedule 2’. Specific advice from a person qualified in the foreign jurisdiction should be sought. There is no advantage in having separate wills for different Australian jurisdictions.

Executors and foreign wills 3.8 Because the operation of each will is restricted to its own jurisdiction, it is essential to appoint executors to deal exclusively with the property covered by the foreign will, and to appoint separate executors to deal exclusively with the property covered by the Australian will: see Bath v British & Malayan Trustees Ltd [1969]

2 NSWLR 114. Forms 10.06A and 10.06B are appropriate if Forms 3.04A and 3.04B are used.

FORMS FORM 3.01 Heading, commencement and testimonium [To be used in every will.] [The commencement is not numbered.] Last will THIS WILL is made by me [name] of [address] in the [state or territory, eg, state of Victoria], [postcode and occupation]. FORM 3.02 International will This will is made in the form of an international will to which the Annex of the Convention Providing a Uniform Law on the Form of an International Will 1973 applies. The Annex to the Convention is recognised by [insert relevant state or territory legislation]. FORM 3.03 Certificate by Authorised Person (Article 10, Annex to the Convention Providing a Uniform Law on the Form of an International Will 1973). 1. I, .......... (name, address and capacity), a person authorised to act in connection with international wills certify that on .......... (date) at .......... (place) .......... (testator) .......... (name, address, date and place of birth) in my presence and that of the witnesses (a) .......... (name, address, date and place of birth) (b) .......... (name, address, date and place of birth) has declared that the attached document is his will and that he knows the contents thereof. 2. I furthermore certify that: (a) in my presence and in that of the witnesses [page 94] (i) the testator has signed the will or has acknowledged his signature previously affixed. *(ii) following a declaration of the testator stating that he was unable to sign his will for the following reason .......... – I have mentioned this declaration on the will * – the signature has been affixed by .......... (name, address) (b) the witnesses and I have signed the will;

*(c) each page of the will has been signed by .......... and numbered; (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above; (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting; *(f) the testator has requested me to include the following statement concerning the safekeeping of his will: ...................................... PLACE DATE SIGNATURE and, if necessary, SEAL * To be completed if appropriate. FORM 3.04A Heading, commencement and testimonium clauses for wills for Australia and a foreign country Australian will [This will must be a complete will, and must deal with all relevant administrative matters including appointment of the executors for Australia and the jurisdictions covered by this will (see Form 10.06A), contemplation of marriage and guardianship matters, so that it can operate completely independently of the will for the foreign jurisdiction.] THIS MY AUSTRALIAN WILL is made by me [name] of [address] in the [state or territory, eg, State of Victoria], [postcode, and occupation]. This will affects my property and affairs in Australia and every other part of the world, except that it does not in any way take effect in or affect property or affairs of mine in [name foreign country]. This will takes effect and operates independently of and separately from any will made by me in respect of property and affairs of mine in [name foreign country]. [Here follows the usual revocation clause. The ordinary form of revocation (Form 4.01) may be used since there is no danger that the revocation in one will might operate outside the area in which that will is declared to operate.] [See Form 10.06A for the appointment of Australian executors.] FORM 3.04B [Name foreign country] will [This will must be a complete will, and must deal with all relevant administrative matters including appointment of the executors for the jurisdiction covered by this will [page 95] (see Form 10.06B), contemplation of marriage and guardianship matters, so that it can operate completely independently of the Australian will.] THIS MY [NAME FOREIGN COUNTRY] WILL is made by me [name] of [address] in the [state or territory, eg State of Victoria], [postcode, and occupation]. This will affects my property and affairs in [name foreign country], but does not take effect in or affect property or affairs of mine in any other part of the world. This will takes effect and operates independently of and separately from any will made by me in respect of property and affairs of mine in any jurisdiction other than [name foreign country]. [Here follows the usual revocation clause. The ordinary form of revocation (Form 4.01)

may be used since there is no danger that the revocation in one will might operate outside the area in which that will is declared to operate.] [See Form 10.06B for the appointment of foreign executors.]

1.

ACT: Wills Act 1968 Pt 3B; NSW: Succession Act 2006 Pt 2.4A; NT: Wills Act Pt 5A; Qld: Succession Act 1981 Pt 2 Div 6A; SA: Wills Act 1936 Pt 3A; Tas: Wills Act 2008 Pt 5A; Vic: Wills Act 1997 Pt 2 Div 7; WA: Wills Act 1970 Pt XA.

2.

ACT: Wills Act 1968 Pt 2A; NSW: Succession Act 2006 Pt 2.4; NT: Wills Act Pt 5; Qld: Succession Act 1981 Pt 2 Div 6; SA: Wills Act 1936 Pt 3; Tas: Wills Act 2008 Pt 5; Vic: Wills Act 1997 Pt 2 Div 6; WA: Wills Act 1970 Pt 7. See also [31.41].

[page 97]

Chapter 4 REVOCATION CLAUSES Introductory Notes Need for revocation clause; wording the clause 4.1 A revocation clause should be included in every will which is intended to operate as the totality of the testator’s testamentary dispositions. If there is no revocation clause, any previous testamentary dispositions will be revoked by implication only to the extent to which those dispositions are inconsistent with those of the later will: Dempsey v Lawson (1877) LR 2 P & D 98; Cadell v Wilcocks [1898] P 21; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, LBC Information Services, Sydney, 1996, [17.08]; RS Geddes and CJ Rowland, ‘Revocation by Later Will: Relevance and Proof of Intention’ (1984) 58 ALJ 186; CJ Rowland and RS Geddes, ‘Revocation by Later Will: Giving Effect to Intention’ (1986) 60 ALJ 18. Although it is more cumbersome, the phrase ‘testamentary act’ has been preferred to the word ‘will’ to prevent it being suggested, where the previous acts include codicils, that the revocation clause does not apply to them. ‘Testamentary acts’ would also include wills which do no more than appoint executors or testamentary guardians.

General revocation clause 4.2

Form 4.01 offers a general revocation clause.

Limited revocation clause for use in a codicil 4.3 Where a testator desires to keep part of her or his previous testamentary disposition alive, the revocation clause must be carefully limited to preserve this part. Form 4.02 is appropriate for the purpose, but the use of the form is dangerous. Use the form only if necessary — for example, in an emergency, or if the testator’s capacity is in doubt and you do not want to risk revoking the whole will. Codicils should generally be avoided. In particular, it is unwise to have more than one codicil: see Chapter 30.

Revocation where testator has wills in several jurisdictions 4.4 Form 4.03 offers a revocation clause where the testator has wills in several jurisdictions and wishes to only revoke only of those testamentary acts. [page 98]

FORMS FORM 4.01 Comprehensive (general) revocation clause [This clause is a numbered clause, and is usually numbered 1.] I revoke all previous testamentary acts. FORM 4.02 Limited revocation clause [This clause is a numbered clause, and is usually numbered 1.] I revoke all previous testamentary acts except clause [number] of my will dated [date of will referred to. Make quite sure that the date is correct, and that the will referred to is indeed the last will and not an earlier, revoked, will], which clause I confirm. FORM 4.03

Revocation clause where testator has wills in several jurisdictions

[This clause is a numbered clause, and is usually numbered 1]. I revoke all previous testamentary acts made by me in respect of property and affairs of mine in [name country]. I confirm all other testamentary acts made by me in respect of property and affairs of mine in [name country].

[page 99]

Chapter 5 DIRECTIONS AS TO DISPOSAL AND USE OF THE BODY; ENDURING POWER OF ATTORNEY; APPOINTMENT OF ENDURING GUARDIAN; DIRECTIONS AS TO UNDUE PROLONGATION OF LIFE Introductory Notes Executor has the right, and is subject to the duty, to dispose of the body 5.1 The executor — and if no executor is appointed, normally the person with the strongest right to be the administrator (the right of the surviving spouse or de facto partner being preferred to the right of children) — has the duty and the right to decide matters concerning the disposal of the body. Where two persons have an equal right to be the administrator, the court will generally decide a conflict between them in a ‘practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and

decency’ as stated by Pullin J in Burrows v Cramley [2002] WASC 47, quoting Martin J in Calma v Sesar (1992) 106 FLR 446 at [14]. The court will enforce an executor’s right to possession of the body for the purposes of burial; however, rights concerning the disposal of the body are not property rights, except where through the lawful exercise of work or skill the body has acquired some attributes differentiating it from a mere corpse awaiting burial, or parts of it have been worked on to preserve it for science: see Doodeward v Spence (1908) 6 CLR 407. See further R Magnusson, ‘The Recognition of Proprietary Rights in Human Tissue in Common Law Jurisdictions’ (1992) 18 MULR 601; RF Atherton and P Vines, Succession: Families, Property and Death, 4th ed, LexisNexis Butterworths, Sydney, 2013, [4.49]; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, LBC Information Services, Sydney, 1996, [48.25]; M Davies and N Naffine, Are Persons Property? Legal Debates about Property and Personality, Ashgate Dartmouth, Aldershot, UK, 2001, Ch 5. [page 100] The exception was applied by Hulme J in Edwards; Re Estate of Edwards [2011] NSWSC 478; BC201103171 in allowing Ms Edwards to retain possession of sperm extracted from her deceased husband’s body shortly after his death where the evidence was that she intended to use the sperm for the purposes of assisted reproductive treatment. The judgment dealt only with the question of the right to possession and it was of some controversy as New South Wales legislation prohibited Ms Edwards from using the sperm for assisted reproductive treatment. Disputes as to disposal of the body will inevitably be emotional, particularly where one of the parties asserts that religious custom requires the body to be dealt with in a certain way. The general principle set out above will usually prevail. See Tufala v Marsden

[2011] QSC 222; BC201008792; Spratt v Hayden [2010] WASC 340; BC201105791 and Firth v Schubert [2010] QSC 444; BC201010255.

Disposal of body directions: where they should be kept; wording 5.2 Directions to the executor on the disposal of the body are not binding: Robinson v Pinegrove Memorial Park Ltd (SC (NSW), Eq D, Waddell CJ, 5 June 1986, unreported), discussed in RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, [48.25]; see Leeburn v Derndorfer [2004] VSC 172; BC200403251); cf AA Preece, Lee’s Manual of Queensland Succession Law, 6th ed, Lawbook Co, Sydney, 2007, [7.100]; M Groves, ‘The Disposal of Human Ashes’ (2005) 12(3) Journal of Law and Medicine 267, Westlaw AU, accessed 15 July 2016. They are still often made, and when made they are usually followed. If a testator gives firm instructions as to his or her wishes for the disposal of the body, the testator should be advised to nominate an executor they believe will carry out the testator’s wishes in this regard. The wishes of a person respecting the disposal of her or his body may be expressed in the will, but this is not the best — and certainly should not be the only — repository for those wishes. The will may not be found for some time after the death, and by then it may well be too late for the expressed wishes to be given effect, and it may also be too late to make tissues available for transplant. The testator should be advised to make her or his wishes known to the executors and close family members. Directions to make the body or its parts available for transplantation, therapeutic, medical or scientific purposes should be made in a separate signed, witnessed and dated document, so that those wishes can be carried out and so that the hospital can be informed of any wish. The document expressing the testator’s wishes should also be placed with the copy of the will with the testator’s papers at home. The Estate Information Manual (see

[2.5] and Form 2.04) is a good place to record these wishes. On making arrangements for use of the body for medical purposes, see [5.3]–[5.6]. For some religious groups special arrangements can be made. The forms in this chapter are offered for the testator who is determined to place disposal of the body directions in the will. Precatory words are used in the disposal of the body clauses in this chapter, so that the testator knows that her or [page 101] his wishes may not be legally binding on the executors, however the testator may prefer to use mandatory language. A statement by a person that her or his body is not to be cremated is legally binding.1

Right of burial 5.3 In Smith v Tamworth City Council (1997) 41 NSWLR 680, Young J considered the legal position in relation to a right of burial in New South Wales. In that case, the plaintiffs (the deceased’s biological parents), brought proceedings against the Council and the deceased’s adoptive parents, seeking to compel the Council to transfer to them the title of the plot in which the deceased was buried. The deceased’s adoptive parents, after consultation with the deceased’s de facto partner, had buried the body and erected a headstone. After considering a range of Australian and international authorities, his Honour stated a number of useful principles: at 693–4. In brief, these principles include that a named executor has the right to arrange for burial of the deceased’s body but if no executor is named, the person with the highest right to take out administration has the right to arrange for burial. A person has no other right to dictate what will happen to his or her body apart

from appointing an executor. The holder of the right of burial has the power to decide on the appearance of the grave and headstone and can recover reasonable costs of a reasonable headstone from the deceased’s estate. However, the holder of the right of burial cannot exclude the deceased’s friends and relatives from accessing the grave or placing flowers on it. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the original deceased. A right of burial is an easement that is irrevocable once a body has been buried in the licensed plot. As a right of burial is a different obligation from the obligation to pay for the burial, it is irrelevant who paid for the burial as to who holds the right of burial. Young J notes that cremation is nowadays equivalent to burial. On the facts of the case there was no doubt that the deceased’s adoptive parents had the privilege of deciding on the burial (the deceased’s de facto partner and infant daughter consenting to leave matters in their hands). The deceased’s [page 102] adoptive parents therefore held the right of burial and they did not hold it on behalf of the plaintiffs. The plaintiffs had no right to erect a substitute headstone including their names on the grave.

Use of body for anatomical, transplantation, therapeutic, medical or scientific purposes or for assisted reproductive treatment 5.4 A testator who wishes to make her or his body available for transplantation, therapeutic, medical or scientific purposes should discuss the matter with her or his doctor, or with the university or hospital concerned, so that appropriate arrangements can be made in good time. The testator’s wishes should be registered on the

Australian Organ Donor Register, accessible through , accessed 5 July 2016. It is possible in some jurisdictions to indicate wishes regarding organ transplants on drivers’ licences. The testator could carry a card in her or his wallet stating the testator’s wishes. The wishes of the deceased person, so far as they are known, are decisive in that, if the deceased is known to have had a wish that the body should not be used for such purposes, that wish will be deferred to. If those wishes are not known, the wishes of the next of kin or senior available next of kin will determine the matter. (The rules under the Anatomy Acts of Tasmania and Western Australia differ somewhat from those under the uniform legislation in the other jurisdictions.)2 Where the testator has positive views on whether or not the body is to be available for anatomical, therapeutic, medical or scientific purposes, mandatory language should be used. In general, it is suggested that no specific hospital or medical school be named, although Form 5.06 provides for naming if the testator requires it. The reason for not specifying a particular institution is that the testator may die at a distance from the named institution, in which case time and the expense of transporting the body become obstacles. As highlighted in Edwards; Re Estate of Edwards, legislation3 prohibits the use of a person’s gametes (sperm or ovum) in assisted reproductive treatment after a person’s death unless specific conditions, including obtaining the consent of the gamete provider, are met. Again, consent should be documented, signed and witnessed, although it is not recommended that such consent be given in the will. [page 103]

Enduring powers of attorney; directions as to medical treatment; living wills Enduring powers of attorney 5.5 We suggest that the solicitor tell every client that he or she can make an enduring power of attorney. Subject to the terms of the instrument an attorney may do anything that the principal can do including transacting on bank accounts and managing property. Enduring powers are relevant as between partners as well as spouses, and to anyone caring for a person whose capacity could decline. An enduring power of attorney endures beyond the client’s loss of capacity, although it can also operate while the client has capacity and may be used where, for example, the client is intending to travel overseas and wishes to appoint someone in the jurisdiction to attend to specific matters. Legislation prescribes the formalities which must be complied with to make a power of attorney enduring.4 Legislation in each jurisdiction provides for prescribed forms which can either be found in the schedules to the legislation or if the approval is delegated to a minister or other officer, on government websites.5 Enduring powers of attorney give peace of mind to the donor of the power, and they are very helpful — even indispensable — to family members caring for elderly or infirm persons. Putting in place arrangements for an attorney to manage the affairs of a person who is incapacitated by illness or misadventure may relieve some of the burden that relatives would otherwise suffer in those difficult situations. The principal should also be encouraged to discuss the principal’s wishes with the attorney so that the attorney is aware of them in exercising his or her powers at the relevant time.

Enduring guardians

5.6 The solicitor should also tell the client that he or she can appoint an enduring guardian. An enduring guardian can make medical, health care and treatment decisions for the appointor depending on the terms of the appointment. In contrast to a power of attorney an appointment of enduring guardian cannot take effect until the appointor has lost legal capacity or is unable to make decisions for [page 104] himself or herself. Legislation prescribes the formalities which must be complied with to appoint an enduring guardian6 and prescribed forms can be found in the schedules to the legislation or at government websites.7

Advance health care directives 5.7 In some jurisdictions the legislation also allows advance health directives (sometimes called ‘living wills’) to be made.8 The legislation is complicated, and there are internal overlaps. The legislation will not be discussed fully here, and the person advising the client should have proper knowledge of the law or obtain specialist advice. Enduring powers of attorney and advance health directives to a large extent cover overlapping areas, and a client who is considering one will usually be also considering the other. In view of the fact that this paragraph is not a detailed consideration of either, we have decided not to tease out the relevant legislation into its component parts. In Gardner; Re BWV [2003] VSC 173; BC200302640, Morris J considered the Medical Treatment Act 1988 (Vic), and held that the artificial provision of [page 105]

nutrition and hydration was, in the circumstances, medical treatment within the meaning of the Act. This opened the possibility that the treatment could be ended, and the patient allowed to die with dignity. See S Michalowski, ‘Advance Refusals of Life-sustaining Medical Treatment: The Relativity of an Absolute Right’ (2005) 68(6) Modern Law Review 958, Wiley Online Library, accessed 15 July 2016.

Powers, limitations and dangers 5.8 No power of attorney empowers the attorney to make a will for a person who lacks capacity. In some jurisdictions the court has power to authorise a will for a person lacking capacity: see [1.15]–[1.16]. An attorney will owe fiduciary duties to the principal to act in the principal’s best interests. The prescribed forms allow the principal to give the attorney the power to benefit himself or herself and to benefit others. The scope of these powers is defined in some jurisdictions.9 Solicitors should carefully discuss these powers with the client. If the client does not want the attorney to have those powers, they should be struck out. The attorney should be made aware that the power to benefit himself or herself is subject to the overriding fiduciary duty to the principal. Giving an enduring power of attorney has its dangers. These arise mainly because the attorney is in a position of power, which is open to abuse. See O Ames and J Harley, ‘Elder Abuse — Being Part of the Solution, Not Part of the Problem’ (2001) 23(3) LSB (SA) 34; C Stewart, ‘Managing Death and the Law’ (2008) 86 Precedent 4; K Bradley, ‘Powers of Attorney’ (2008) 86 Precedent 16; T Stewart, ‘Enduring Powers of Attorney: An Effective Planning Tool or an Avenue for Financial Abuse’ (2012) 32 Queensland Lawyer 201. A power of attorney may be abused whether or not the attorney is given the power on the face of the document to benefit himself or herself. The solicitor should also ask the client about their

superannuation fund when taking estate planning instructions. If the client has a self-managed superannuation fund and that client loses legal capacity, the attorney will need to ensure that the fund continues to comply with the legislation, including by appointing the attorney as trustee of the fund or as director of the trustee if the trustee is a company.10 The attorney should be given detailed instructions, including details of the fund accountant, or alternatively those instructions should be left with the power of attorney document.

Forms and precedents 5.9 For persons who wish to give additional guidance to medical practitioners and family concerning the types of medical treatment they do not want, and also for persons who want to go beyond the limits of the legislation, a living will (‘advance health care directive’) can be downloaded from various websites, located by searching using these terms. Enduring power of attorney legislation contains standard forms (which the donor can vary if desired), but no precedents are offered here. [page 106]

FORMS FORM 5.01 Inexpensive disposal of body (1) I wish my body to be disposed of cheaply and near where I die. (2) It is not important to me that if I die overseas my body be brought back to Australia. FORM 5.02 General disposal of body clause (1) I wish to be [cremated (or) buried] near where I die. (2) It is not important to me that if I die overseas my body be brought back to Australia. [alternative subclause (2):] (3) If I die overseas I desire that my ashes be returned to Australia.

FORM 5.03 Cremation I wish to be cremated [(add, if required) in (place. Add, if required) and to have my ashes deposited at (place, or) and to have my ashes scattered over (place)]. FORM 5.04 Burial [Specify whether or not, if the testator dies overseas, the body is to be brought back to Australia.] I wish to be buried at [(place)]. FORM 5.05 Body to be available for anatomical, therapeutic, medical or scientific purposes [Combine with Form 5.01, Form 5.02, Form 5.03 or Form 5.04 for parts not used or of no further use.] I declare my body available for anatomical, therapeutic, medical or scientific purposes. FORM 5.06 Body to be used for research by particular institution [Combine with Form 5.01, Form 5.02, Form 5.03 or Form 5.04 for parts not used or of no further use.] After my death I wish my body to be used for medical education or research by the [university]. FORM 5.07 Body not available for any purpose My body is not available for any anatomical, therapeutic, medical or scientific purpose.

1.

ACT: Cemeteries and Crematoria Act 2003 s 20 and Cemeteries and Crematoria Regulation reg 8(1)(c); NSW: Public Health Regulation 2012 reg 77; NT: Cemeteries Act s 18 (on receiving notice from the deceased’s next of kin objecting to the deceased’s cremation, the Board or the Minister must not grant a permit for cremation unless the deceased left an attested memorandum directing or expressing the desire for his body to be cremated); Qld: Burials Assistance Act 1965 s 3(3); SA: Burial and Cremation Act 2013 s 10(7) (The Registrar must not issue a cremation permit if the Registrar is aware that a person representative or parent or child of the deceased objects to the disposal of the remains by cremation, unless the deceased directed, by a will or some other attested instrument, that his or her remains be disposed of by cremation); Tas: Burial and Cremation (Cremation) Regulations 2002 Pt 2 (‘senior next of kin’ may apply to medical practitioner for cremation permit); Vic: Cemeteries and Crematoria Regulations 2005 Sch 3 (cremation application form requires statement about deceased’s wishes); WA: Cremation Act 1929 s 8A(b); Cremation Regulations 1954 App A Form 6 (cremation application form requires statement about deceased’s wishes). See further Halsbury’s Laws of Australia, LexisNexis Butterworths, [350-4180].

2.

ACT: Transplantation and Anatomy Act 1978 ss 27, 28, 37, 38 (see T Johnstone, ‘Living Wills’ (2005) 196 Ethos 16 — this article considers the Australian Capital Territory legislation); NSW: Anatomy Act 1977 ss 8, 8A; Human Tissue Act 1983 ss

3.

4.

5.

6.

23, 24; NT: Transplantation and Anatomy Act ss 18, 19A, 19B; Qld: Transplantation and Anatomy Act 1979 ss 22, 23, 31, 32; SA: Transplantation and Anatomy Act 1983 ss 21, 22, 29, 30; Tas: Human Tissue Act 1985 ss 23, 24; Anatomical Examinations Act 2006 ss 6, 7; Vic: Human Tissue Act 1982 ss 26, 27, 32; WA: Human Tissue and Transplant Act 1982 s 22; Anatomy Act 1930 ss 8, 9, 10. See further Halsbury’s Laws of Australia, LexisNexis Butterworths, [280-4505]. NSW: Assisted Reproductive Technology Act 2007 s 23; SA: Assisted Reproductive Treatment Act 1988 s 9(c); Vic: Assisted Reproductive Treatment Act 2008 Pt 5; WA: Human Reproductive Technology Act 1991 s 26(1)(b). ACT: Powers of Attorney Act 2006 s 21(3); NSW: Powers of Attorney Act 2003 s 19; NT: Powers of Attorney Act 1980 s 13; Qld: Powers of Attorney Act 1998 s 44; SA: Powers of Attorney and Agency Act 1984 s 6; Tas: Powers of Attorney Act 2000 s 30; Vic: Powers of Attorney Act 2014 s 33; WA: Guardianship and Administration Act 1990 s 104. ACT: Powers of Attorney Act 2006 s 92. In the Australian Capital Territory the prescribed power of attorney is approved by the minister and may be downloaded from the legislature website, under ‘Approved Forms’. NSW: Powers of Attorney Regulation 2011 Sch 2. See ; NT: Powers of Attorney Act 1980 s 13. In the Northern Territory the prescribed power of attorney is approved by the Registrar-General and may be downloaded from the Northern Territory government website ; Qld: Powers of Attorney Act 1998 s 11. In Queensland the prescribed power of attorney is approved by the Chief Executive and may be downloaded at ; SA: Powers of Attorney and Agency Act 1984 Schs 1 and 2; Tas: Powers of Attorney Act 2000 Sch 1; Vic: Instruments Act 1958 Sch 12; WA: Guardianship and Administration Act 1990 Sch 3. ACT: Powers of Attorney Act 2006. Power of attorney legislation has also been extended in the Australian Capital Territory. Attorneys for ‘personal care matters’ are able to exercise not only financial management but personal decision-making functions on behalf of their appointors: see Power of Attorney Act 2006 generally; NSW: Guardianship Act 1987 s 6C; NT: Advance Personal Planning Act 2013 s 8 (which provides that an advance personal plan may be about all or any aspect of the adult’s health and welfare, including health care); Qld: Guardianship and Administration Act 2000 s 12. In Queensland the power of attorney legislation (Powers of Attorney Act 1998) has also been extended to include personal decisionmaking functions in Chs 3 and 5, Schs 1 and 2: see Guardianship and Administration Act 2000 s 8; SA: As of July 2014 it is no longer possible to make an enduring power of guardianship, although an enduring power of guardianship prepared before July 2014 is still effective. However an advance care directive can be made under Pt 3 of the Advanced Care Directives Act 2013; Tas: Guardianship and Administration Act 1995 s 32; Vic: As of 1 September 2015 it is no longer possible to make an enduring power of guardianship document in Victoria. Enduring guardianship documents made before 1 September 2015 remain valid. People in Victoria can make a medical enduring power of attorney appointing another

individual with the power to make decisions about their medical treatment on their behalf: see Medical Treatment Act 1988 s 5A; WA: Guardianship and Administration Act 1990 s 104. 7.

8.

ACT: Power of Attorney Act 2006 s 96, form available at ; NSW: Guardianship Regulation 2010 Sch 1; see also ; Qld: see above n 6; SA: See ; Tas: Guardianship and Administration Act 1995 Sch 3; Vic: Medical Treatment Act 1988 Sch 2; WA: Guardianship and Administration Act 1990 Sch 3. ACT: Powers of Attorney Act 2006; Medical Treatment (Health Directions) Act 2006 s 7; (see T Johnstone, ‘Living Wills’ (2005) 196 Ethos 16 (this article considers the Australian Capital Territory legislation). The Powers of Attorney Act 2006 (ACT) requires that one witness to an enduring power of attorney be ‘a person authorised to witness the signing of a statutory declaration’: s 21(3). The form to be used for an enduring power of attorney is Approved Form AF2007-52 under the Powers of Attorney Act 2006 s 92; NSW: Guardianship Act 1987 Pt 2; Powers of Attorney Act 2003 Div 2 (does not deal with medical matters); NT: Advance Personal Planning Act; Rights of the Terminally Ill Act; Powers of Attorney Act Pt 3 (does not deal with medical matters); Qld: Powers of Attorney Act 1998 Pt 3; SA: Consent to Medical Treatment and Palliative Care Act 1995; Powers of Attorney and Agency Act 1984 (does not deal with medical matters); Tas: Guardianship and Administration Act 1995 Pt 6 (see s 43(2)); Powers of Attorney Act 2000 Pt 4 (does not deal with medical matters); Vic: Medical Treatment Act 1988; WA: Guardianship and Administration Act 1990 Pt 9. For more detail see Halsbury’s Laws of Australia, LexisNexis Butterworths, [280-3025], and on powers of attorney, [15-45].

9. ACT: Powers of Attorney Act 2006 s 34; NSW: Powers of Attorney Act 2003 s 12. 10. Cth: Superannuation (Industry) Supervision Act 1993 s 17A(3)(b)(ii).

[page 107]

Chapter 6 DEATHS — SIMULTANEOUS OR NEAR-SIMULTANEOUS; PRESUMPTION OF DEATH; ORDER OF DEATHS CLAUSES; INTERMEDIATE INCOME Introductory Notes Lapse 6.1 If a beneficiary pre-deceases a testator, a gift by the testator to that beneficiary will fail or lapse: see [27.19]. Although this is assumed knowledge for will-drafters, it is not well known among testators. Legislation in most jurisdictions contains provisions altering doctrine of lapse including where a testator and beneficiary die close in time. Presumably the legislation reflects a broad community assessment of what should happen in those situations. Although it may be that these situations are statistically infrequent, if they are not considered at the time of will-drafting there is a risk that should they arise the provisions of the will and the application of the relevant legislation will not reflect the testator(s) intentions. The doctrine of lapse should be explained to the testator, the testator should be asked what gifts he or she would like to make in

the event of lapse, and default provisions should be included in the will to reflect the testator’s instructions.

Provision for actual deaths 6.2 The testator and a beneficiary, or two beneficiaries, may die in circumstances rendering it uncertain which died first. In all jurisdictions except South Australia, there is legislation which creates a statutory order of death where two or more people have died and the facts leave the actual order of deaths uncertain. (These legislative provisions are called commorientes, order of deaths or presumption of survivorship provisions.) The legislation in four states (New South Wales, Queensland, Tasmania and Victoria)1 creates a general presumption that the older [page 108] is presumed to have died before the younger. It was held in Re Grosvenor [1944] 1 All ER 81 that the statutory provision did not apply where it appeared that the deaths were ‘simultaneous’; this was, however, overruled on appeal by the House of Lords in Hickman v Peacey [1945] AC 304. The statutory provisions do not take away from the court the power to decide, if it can, which of two or more persons died first, and the statutory provisions apply only where the court is unable to decide the question on a balance of testimony satisfactory to itself: Re Plaister (1934) 34 SR (NSW) 547; Re Comfort [1947] VLR 237. To exclude the statutory presumption it is necessary that there be evidence leading to a defined and warranted conclusion that one person died before the other: Re Bate [1947] 2 All ER 418. The statutory provisions are not confined in their operation to deaths in a common disaster, but are wide enough to cover deaths in entirely unconnected circumstances: Re Watkinson [1952] VLR 123. The Northern Territory, Western Australia and the Australian

Capital Territory also have provisions which create a general presumption that the older is presumed to have died before the younger, but the provisions are overridden in relation to the devolution of property. If the order of deaths is uncertain, the property of each devolves as if he or she had survived the other or others of them and had died immediately afterwards. The effect of the provisions is to preserve the gift — that is, to prevent the gift vesting in a beneficiary and then divesting immediately afterwards.2 Except in the Northern Territory, none of the statutory provisions covers cases where one or more of the deaths are presumed (though not proved): see [6.3]. At common law, in cases where two or more persons died in circumstances in which the order of deaths could not be established there was no presumption as to the order of deaths. A person who needed to show that one person had survived another had to prove it affirmatively, and if this could not be done the survivorship issue was treated as a matter incapable of determination: Wing v Angrave (1860) [page 109] 8 HL Cas 183; 11 ER 397 (House of Lords); Halbert v Mynar [1981] 2 NSWLR 659; Public Trustee v Attorney-General (SC (NSW) (Eq), 3 August 1984, No 3854 of 1983, Cohen J, unreported). In Halbert v Mynar [1981] 2 NSWLR 659, probate of a will was granted on presumption of death. The testator had disappeared with his daughter nine years previously, and subsequent to their disappearance his wife had died. The executor applied to the court for directions as to distribution of the estate in the events that had happened. The issue was whether the testator’s daughter or his wife should be presumed to have survived him. The court determined that s 35 of the Conveyancing Act 1919 (NSW)

applied only to proved deaths, not presumed deaths and the order of death could not be determined based on the statute. The presumption was described by Dixon J in Axon v Axon (1937) 59 CLR 395 at [405] as follows: If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives.

Words like ‘simultaneous death’ or ‘in the event of our deaths coinciding’ have no place in a will, because deaths are processes and are virtually never, strictly speaking, demonstrably simultaneous: see Re Rowland [1963] 1 Ch 1.

Provision for presumed deaths — presumption of death 6.3 Where a death cannot be proved, or the court is unable to draw the inference of death from the facts given in evidence (Re Ryan [1990] 3 NZLR 91; Re Heynatz [2006] QSC 173; BC200605478), the court may have to resort to the presumption of death which arises when seven or more years have elapsed since the disappearance of the person. There is a rebuttable presumption of law that a person who has been missing for seven years — and has not been heard of by those with whom he or she would be expected to communicate during that period — is dead at the time of the proceedings: Axon v Axon (1937) 59 CLR 595. In Axon a husband disappeared while trying to escape a wife wielding a maintenance order. The court refused to presume his death — it was not surprising that he had not been heard from. (Axon was followed in Estate of Howard (1996) 39 NSWLR 409; Re Application for Grant of Presumption of Death; Ex Parte Jenkins [2008] WASC 49;

BC200802290; Re Curran [2010] VSC 455; BC201007603; and Lashko v Lashko [2011] WASC 214; BC201107395.) Axon lays down the principle that there is no presumption that death occurred at any particular time before the proceedings, even if the proceedings take place long after the seven-year period. So the presumption is of no help where, for example, T leaves her estate to B, and if B dies before her, to C. B disappears in [page 110] 1988; T dies in 1991; and C claims the estate in 1998, seeking an order presuming B’s death. It is possible to get an order presuming B’s death, but the order will presume no more than that B died at some time between 1988 and the hearing in 1998. This does not resolve C’s problem — to inherit, C must prove entitlement. He or she cannot prove that B died before T. Nor can B’s heirs prove that B died after T. The uncertainty could be resolved if the common law presumption in Axon were to be altered by legislation. Unfortunately, this has not been done in Australia. Except for the Northern Territory, no Australian jurisdiction makes provision for presumed (as opposed to proved) deaths and the order in which they occur, and it seems that this is a serious lacuna in the law: see Halbert v Mynar [1981] 2 NSWLR 659, followed in Public Trustee v Attorney-General (SC (NSW) (Eq), 3 August 1984, No 3854 of 1983, Cohen J, unreported). Halbert v Mynar [1981] 2 NSWLR 659 stands for the proposition that s 35 of the Conveyancing Act 1919 (NSW) applies only to proved deaths, and not to presumed deaths (contrast Re Albert [1967] VR 871, which was not followed in Halbert v Mynar). It appears from the wording of the provisions that the reasoning in Halbert v Mynar would apply to the statutes in all other jurisdictions except Victoria, where Re Albert [1967] VR 871 would seem to apply.

The Northern Territory commorientes provisions are more comprehensive than those in other Australian jurisdictions: Law of Property Act (NT) ss 216, 217 and 218. Sections 216 and 217 are carefully drafted, and provide for presumed as well as proved deaths. (The Administration and Probate Act (NT) s 64 makes special provision for the case where an intestate and her or his spouse or partner die in circumstances where it is uncertain which of them survived the other.) Section 216 deals with specific cases; s 217 lays down the general rule. Section 216(1) provides that the rules apply subject to a contrary intention. Section 216(2) provides: (2) If 2 or more persons die or are presumed dead or 1 or more persons die and one or more persons are presumed dead in circumstances which give rise to reasonable doubts as to which of those persons survived the other or others of them — (a) subject to this section — the property of each of those persons is to devolve as if he or she had survived the other or others of them and had died immediately afterwards; (b) a donatio mortis causa made by any of those persons to another of those persons is void and of no effect; (c) in any case where any of those persons’ life is insured under a policy of life or accident insurance and another or others of them would, on surviving the insured person, be entitled (other than under a will or on the intestacy of a person) to the proceeds or a part of the proceeds payable under the policy, the proceeds are to be distributed as if the insured person had survived the other or each of the others and had died immediately afterwards; (d) any property that is owned jointly and exclusively by any 2 or more of those persons is to devolve as if it were owned by them as tenants in common in equal shares when they died;

[page 111] (e) subject to subsection (3) — in any case where under a will or trust or other disposition property would have passed (whether as the consequence of the operation of section 40 of the Wills Act or otherwise) to any of 2 or more possible beneficiaries (who are from amongst those persons who die or are

presumed dead) if any of the possible beneficiaries could be shown to have survived the other or others of them, the devise or bequest or disposition takes effect as if the property were given to the possible beneficiaries as tenants in common in equal shares, and the property is to devolve accordingly; (f) … (g) in any case where — (i) property is devised or bequeathed or appointed by will or other testamentary instrument to the survivor of 2 or more of the testator’s children or other issue; and (ii) all or the last survivors of those children or other issue are from amongst those persons who die or are presumed dead, that provision applies as if the devise or bequest or appointment were in equal shares to those survivors who leave a child or children who survives or survive the testator …

Subsection (2)(b) provides for donationes mortis causa; subs (2) (c) provides for the proceeds of life policies; subs (2)(f) deals with powers of appointment; subs (2)(h) is a complex provision dealing with the case where ‘those persons who die or are presumed dead include a testator and one or more of his or her issue (however remote) and section 40 of the Wills Act applies’. (The Wills Act 2000 s 40 prevents a disposition from failing because issue of the testator has died before the testator.) Subsections (3) and (4) deal with the priority which some of the preceding provisions take over others. Section 217 of the Law of Property Act (NT) is a backup provision, which states the general rule: 217 In any other case affecting the title to property or the appointment of trustees not referred to in this Part — (a) if — (i) 2 or more persons die; (ii) 2 or more persons are presumed dead; or (iii) one or more persons die and one or more persons are presumed dead; and (b) the circumstances of those persons’ deaths or presumed deaths gives rise to reasonable doubts as to which of those persons survived the other or others, the deaths or presumed deaths or deaths and presumed deaths are presumed to have occurred in order of seniority and, accordingly, the younger is presumed to have survived the elder.

[page 112] The wording of this provision closely resembles the wording of Form 6.01 in this and previous editions of this book, and the inclusion of the provision in the Northern Territory legislation confirms the utility of Form 6.01. Many people disappear in Australia each year and are never traced. Testators should consider including a clause which lays down an order of deaths for the eventuality that a person affected by the will may disappear and be presumed dead. Form 6.01 is such a presumption of survivorship provision. In previous editions of this book, different presumption of survivorship forms were offered for different jurisdictions. In this edition only one provision (Form 6.01) is offered for all wills. The reason is that there is really no ‘South Australian will’ or ‘Northern Territory will’ as such, because testators leave immovable property in more than one jurisdiction, and the testamentary provisions relating to that property will be governed by the law of the situs of the property. The will, wherever the testator is domiciled at death, should have uniform effect throughout the country. Although the legislation appears to make it unnecessary, Form 6.01 should therefore also be included in Northern Territory wills. Form 6.01 would normally be placed in the will with the administrative provisions: see [9.4]ff.

30-day survivorship period for beneficiaries: express inclusion or exclusion 6.4 There are reasons for making a gift contingent on the beneficiary surviving the testator by a specified period such as 30 days. First, if the testator and the beneficiary die in a common accident, there is the possibility that the order of deaths may be uncertain. A 30-day survivorship requirement eliminates the resulting problems in almost all cases. (The argument for

including a 30-day survivorship provision is particularly strong if there is a reasonable possibility of a testator and a beneficiary being involved in a common accident.) Second, the costs of administering an estate are to an extent proportional to the size of the estate. It follows that if the estate of the first dying vests in the survivor and then has to be administered again on the death of the survivor a few days later, the survivor’s estate includes the survivor’s rights in relation to the estate of the first dying, and the costs of administering the estate of the survivor are increased accordingly. As the survivor who survives the testator by less than 30 days does not get any real benefit from the inheritance during the short time of survivorship, no benefit flows from the increased cost. Taking considerations such as these into account, the legislatures in six Australian jurisdictions — the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, Tasmania and Victoria — have made all beneficial testamentary bequests subject to a 30-day survivorship condition (except where the testator has a contrary intention).3 Section 33B of the Succession Act 1981 (Qld), for example, provides: [page 113] (1) If a disposition of property is made to a person who dies within 30 days after the testator’s death, the will takes effect as if the person had died immediately before the testator. (2) Subsection (1) does not apply if a contrary intention appears in the will. (3) A general requirement or condition that a beneficiary survive the testator is not a contrary intention.

This means that in those jurisdictions, a simple bequest such as ‘I give $500 to A’ has the following effect: ‘If A survives me by 30 days, I give $500 to A.’ The National Committee for Uniform Succession Laws has recommended the adoption of a statutory 30-

day survivorship provision in all Australian legislatures: see New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills, Report 85, April 1998, pp 128–9. This book recommends that, with a few exceptions, Form 6.02 be included to make beneficial provisions subject to a general 30day survivorship requirement, whether or not the testator’s jurisdiction has a statutory 30-day survivorship provision. The requirement takes the form of one general provision (Form 6.02) for all the beneficial provisions in the will. The testator does have the option, if there is a good reason, to exclude the 30-day survivorship requirement (for instance, by using Form 6.03), but the testator should either include or exclude the 30-day requirement expressly. The effect of including a 30-day survivorship requirement (that is, Form 6.02) in the will is that all beneficiaries everywhere and in relation to property in all jurisdictions must survive the testator by 30 days to inherit. On the other hand, the effect of excluding the 30-day survivorship requirement (for example, by using Form 6.03) is that no beneficiary is subject to any special condition that the beneficiary must survive the testator by 30 days to inherit. The effect of having no survivorship provision at all in the will (for instance, the will contains neither Form 6.02 nor Form 6.03 or its equivalent) would be unsatisfactory. A beneficiary of a gift of immovable property situated in a jurisdiction which does not have a 30-day survivorship provision and who survives the testator but by less than 30 days is able to inherit, while such a beneficiary in a jurisdiction that does have the provision is not able to inherit. As far as movable property is concerned, if the testator was domiciled at death in a jurisdiction which has a 30-day survivorship requirement the beneficiary would have to survive the testator by 30 days to inherit; but if the testator was domiciled at death in a jurisdiction which has no 30-day survivorship requirement the beneficiary would merely have to survive the testator by any period, however short. The inconsistencies resulting from not

including either Form 6.02 or Form 6.03 in the will are inelegant, to say the least, and cannot be what the testator would want. The 30-day survivorship provision should be expressly excluded if the will is already complicated, and it becomes too difficult to work the requirement into the will satisfactorily. Form 6.03 is appropriate. The 30-day requirement is automatically excluded if Form 9.01 is used to set up schedules in wills of spouses [page 114] or partners in blended families: see [9.3], [9.7]. Again, the 30-day requirement should be excluded if the will contains complex trusts such as Form 25.01, 25.05, 25.06 or 25.07. A testator who does not want a 30-day survivorship requirement should expressly exclude it (as is done in Form 6.03 and Form 9.01). In New South Wales, Queensland and South Australia there is a provision requiring intestate beneficiaries to survive the testator by 30 days.4 None of the following jurisdictions — the Australian Capital Territory, the Northern Territory or Victoria — has a provision requiring an intestate beneficiary to survive the testator by 30 days. This has the odd consequence that if a testamentary gift is made to a person who dies after the testator but within 30 days after the testator’s death (and no accrual or substitution takes place), in the Australian Capital Territory, the Northern Territory and Victoria the testamentary gift will fail; but if the failed gift then falls to be distributed on intestacy, the beneficiary will not be excluded from taking the intestate benefit! (The hiatus may have arisen in these jurisdictions because the intestacy rules are in a different piece of legislation from the wills legislation, and when the 30-day survivorship provisions were being drafted, only the testamentary provisions were kept in mind. The same issue existed in New South Wales until 1 March 2010 when new intestacy provisions were introduced as part of the Uniform Succession Laws project.5)

One general 30-day survivorship provision for the whole will rather than one for each gift 6.5 Although we encourage will drafters to draw wills with a 30day survivorship requirement for all beneficiaries, we do not recommend that a separate 30-day survivorship requirement be included in each gift provision. Inserting a 30-day survivorship requirement in each gift form is complicated and wordy, and could create construction difficulties. We offer rather a single general 30-day survivorship provision — Form 6.02 — to cover all the gifts in the will. Form 6.02 should be included in every will except (as noted above) where schedules (Form 9.01) are used in wills of spouses or partners in blended families (see [9.3], [9.7]), or if the will contains complex trusts such as Form 25.01, 25.05, 25.06 or 25.07. The device of a single, general 30-day survivorship provision has the advantage that it also allows the 30-day survivorship requirement to be excluded in a single clause, and for this purpose Form 6.03 is offered. In earlier editions of this book, the form of gift of the estate to the surviving spouse or partner incorporated an express 30-day survivorship provision. In this edition, forms appropriate for gifts to the spouse or partner are now to be found, without any attached 30-day survivorship provisions, in the relevant gift chapters. This follows from the decision to draft all gifts in a simple form without the 30-day survivorship provision, relying on the will drafter to include Form 6.02 if a 30-day survivorship requirement is desired; or, if the 30-day survivorship requirement is [page 115] not desired, Form 6.03 or Form 9.01. The forms of gift of the whole estate to the spouse or partner on condition of survival by

30 days which were part of previous editions have been removed. See further Chapter 9.

Wording survivorship provisions; intermediate income 6.6 A survivorship provision must make it clear that the beneficiary does not receive an immediate interest on death, subject to defeasance. This problem arises, indirectly, from the decisions in Re Kilpatrick’s Policies Trusts; Kilpatrick v Inland Revenue Commissioners [1966] Ch 730 and Kotsar v Shattock [1981] VR 13; see also HAJ Ford and WA Lee, The Law of Trusts, Westlaw AU, [7.10770], accessed 15 July 2016. The apparent result of these decisions is that the wording of certain commorientes clauses may create, not a contingent gift, but a vested gift subject to defeasance: see also Re Dawson [1987] 1 NZLR 580. Whether particular words such as ‘if he survives me’ constitute a contingent gift or a vested gift subject to defeasance, is a difficult question of interpretation. It seems wise, therefore, to make it abundantly clear that the gift is contingent upon the beneficiary surviving the testator by the requisite period. Halbert v Mynar [1981] 2 NSWLR 659 illustrates the importance of avoiding a form of words which unintentionally creates a vesting followed by a divesting. The case also shows how an apparently innocuous form of words can have the undesired result. It is not strictly necessary to use subclause (2) of Form 6.02 for the usual contingent gift, as the appropriate forms are worded to make it plain that the gifts made subject to attainment of majority are contingent: see, for example, Re Dawson [1987] 1 NZLR 580. However, in the interests of abundant caution, it is suggested that Form 6.02 be inserted in every will unless Form 9.01 or Form 6.03 is used. Doing so will give the will drafter a wider choice of phraseology in the substantive provisions of the will. It is not always easy to introduce the word ‘contingent’ or ‘contingently’ in

a clause without making it read awkwardly, for example, in a class gift or a gift to a number of named persons. A 30-day survivorship provision must not be worded in such a way as to delay the executor’s entitlement to act for 30 days after the testator’s death. Some of the executor’s duties and functions, such as the disposal of the body, are urgent: see JK de Groot, Wills, Probate and Administration Practice (Queensland) service, CLE Department, Queensland Law Society Inc, Brisbane, cll 2, 3, 4 and 5 of App 2.1 to Ch 2, ‘The Making of a Will’ — a most helpful chapter. The same applies to other administrative provisions.

Intermediate income 6.7 Form 6.02(2)(ii) provides: ‘income produced by the gift between my death and vesting of the gift accumulates to the gift.’ This follows provisions in a majority of Australian jurisdictions;6 see further AA Preece, Lee’s Manual of Queensland Succession Law, 6th ed, Lawbook Co, Sydney, 2007, [10.130]. [page 116]

Survivorship provisions in wills of couples where one testator excludes the 30-day survivorship requirement 6.8 The needs of a couple may dictate that the will of one testator exclude the 30-day survivorship requirement; for instance, where one testator, being in a blended family, uses Form 9.01 which excludes the 30-day survivorship requirement. If the will of one testator excludes the 30-day survivorship requirement, the other testator must do so too: see [9.8]. If the other testator also uses schedules, this is automatically achieved. However, if the other testator does not use schedules, then the 30-day survivorship

requirement must still be excluded. Form 6.03 is appropriate for this purpose.

FORMS FORM 6.01 Presumption of survivorship [Use in all wills.] [Number as separate clause in the will.] Where: (a) (i) one or more persons have died; (ii) a person has died and one or more deaths are presumed; or (iii) two or more deaths are presumed; and (b) the order of deaths, whether proved or presumed, is uncertain; this will is to be construed as if the deaths, whether proved or presumed, had taken place in the following manner: first, the oldest; then, after a period of 1 day, the second oldest; then, after a period of 1 day, the third oldest; and so on to the youngest. FORM 6.02 Standard clause, recommended for use in all wills except where Form 9.01 is used, requiring that beneficiaries survive the testator by 30 days [Use in all wills EXCEPT where schedules are used for wills of spouses or partners in blended families — that is, where Form 9.01 is used: see Form 9.01 and [9.3]. If neither this Form nor Form 9.01 is used (that is, beneficiaries are NOT required to survive by 30 days), Form 6.03 should be used to exclude the requirement.] [Number as separate clause in the will.] (1) Where any beneficial disposition of property is made to a person who does not survive me for a period of 30 days the disposition is treated as if that person had died before me. (2) (i) In this will, any gift which depends on the beneficiary surviving me by a specified period or attaining a specified age is contingent and does not vest in the beneficiary unless and until he or she has survived the specified period or attained the specified age; and (ii) income produced by the gift between my death and vesting of the gift accumulates to the gift. [page 117] FORM 6.03 Exclusion of requirement that beneficiaries survive the testator by 30 days [Use only if 30-day survivorship requirement is to be excluded. Form 9.01 also excludes

the 30-day survivorship requirement. In wills of spouses or partners, if Form 9.01 is used to set up schedules in one will, use Form 9.01 or this form in the other will.] [Number as separate clause in the will.] No beneficiary is required to survive me by 30 days or any other period in order to take a benefit under my will, and this statement expresses a contrary intention for the purposes of statutory provisions which impose a general requirement that beneficiaries survive me for 30 days or any other period to inherit.

1.

NSW: Conveyancing Act 1919 s 35; Qld: Succession Act 1981 s 65; Tas: Presumption of Survivorship Act 1921 s 2; Vic: Property Law Act 1958 s 184.

2.

ACT: Administration and Probate Act 1929 s 49P. Section 49P provides that the testamentary or intestate benefit devolves as if the benefactor had survived the beneficiary. Section 49Q provides if property was owned jointly by two or more people who died at the same time or in an order that is uncertain, and that property was not held by them as trustees, then it devolves as if the joint owners had held the property as tenants in common in equal shares. In the Australian Capital Territory the Civil Law (Property) Act 2006 s 213 states the general rule, which is that (subject to s 49P) where the order of deaths is uncertain the older is presumed to have died before the younger. Section 213 applies only to land, leaving a gap in relation to personal property; NT: Law of Property Act (NT) s 216 provides that ‘the property of each of those persons is to devolve as if he or she had survived the other or others of them and had died immediately afterwards’; s 217 states the general rule, which is that where the provisions do not apply (and the order of deaths is uncertain) the older is presumed to have died before the younger. Sections 216 and 217 are quoted in [6.3]. Note also Administration and Probate Act s 64 says that where an intestate and his or her spouse or de facto partner died in circumstances rendering it uncertain which of them survived the other, the intestacy provisions apply as if the spouse or de facto partner had not survived the intestate; WA: Property Law Act 1969 s 120(a) provides that ‘the property of each person so dying shall devolve and if he left a will it shall take effect, unless a contrary intention is shown by the will, as if he had survived the other person or persons so dying and had died immediately afterwards’; s 120(i) states the general rule, which is that where the preceding provisions do not apply (and the order of deaths is uncertain) the older is presumed to have died before the younger. ACT: Wills Act 1968 s 31C; NSW: Succession Act 2006 s 35; NT: Wills Act s 34; Qld: Succession Act 1981 s 33B; Tas: Wills Act 2008 s 49; Vic: Wills Act 1997 s 49; USL: The National Committee for Uniform Succession Laws has recommended adoption of such a provision — see New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills, Report 85, April 1998, p 128.

3.

4. 5.

NSW: Succession Act 2006 s 107; Qld: Succession Act 1981 s 35(2); SA: Administration and Probate Act 1919 s 72E. NSW: Succession Amendment (Intestacy) Act 2009.

6.

ACT: Wills Act 1968 s 30A; NSW: Succession Act 2006 s 34; NT: Wills Act s 33; Qld:

Succession Act 1981 s 33H; SA: Has no provision but cf Trustee Act 1936 s 33; Tas: Wills Act 2008 s 48; Vic: Wills Act 1997 s 38; WA: Has no provision but cf Trustees Act 1962 s 58.

[page 119]

Chapter 7 CHILDREN; ADOPTED, SURROGATE AND EX-NUPTIAL CHILDREN; GUARDIANSHIP Introductory Notes Definition of ‘children’: include in every will 7.1 The draftsperson should bear in mind the scheme in the will to determine whether or not any definition of the word ‘children’ is needed. See Form 7.01, Form 7.03 and, subject to the commentary below, Form 7.03 if the testator wishes to exclude adopted, surrogate, foster or ex-nuptial children or stepchildren from his or her will.

Adopted persons1 7.2 A person who is adopted by another person is given by statute the right to inherit from that person as that person’s lawful child. This follows from the fact that generally speaking (apart from criminal matters), a person who is adopted becomes the child of the adopters as if the child had been born to the adopters in lawful wedlock.2 Further, the prior birth or adoptive relationships of the adopted child cease to exist;3 again, it follows that the rights of inheritance between the adopted child and the natural parents terminate too. If a person is adopted by the spouse

(the definitions of the relationship are not uniform between the jurisdictions) of a natural or adoptive parent, the previous relationship is not terminated by the adoption.4 [page 120] It will be unusual for a testator to wish to exclude as a class persons adopted into the testator’s family (whether by the testator or by other members of the family) from benefiting under the will. Nevertheless, for the case where adopted persons are to be excluded, Form 7.01 is appropriate and reference to surrogacy can be deleted where appropriate. The form excludes persons who are adopted by the testator, and it also prevents persons who have been adopted by another person from inheriting from the testator as children of the adopting person.

Surrogate children 7.3 Where surrogacy legislation exists (in all Australian jurisdictions except the Northern Territory),5 reference is made in such legislation to ‘child’. Commercial surrogacy arrangements are prohibited although the birth mother is entitled to recover reasonable costs associated with the arrangement. The effect of a parentage order is the same as that of an adoption order in relation to wills.6 If a person is a child by virtue of a parentage order having been made and is to be excluded, Form 7.01 is appropriate and reference to adopted children can be deleted where appropriate.

Foster or stepchildren 7.4 Where foster or stepchildren are to be excluded, Form 7.02 is appropriate, adapted to apply to either case.

Ex-nuptial children: statutory provisions 7.5 All the states and territories have some general status of children legislation,7 the effect of which is to ameliorate the position of ex-nuptial children in the context of wills. The legislation varies from jurisdiction to jurisdiction, although strong common elements are present. [page 121]

Ex-nuptial children: dangers in not excluding persons related through ex-nuptial relationships 7.6 If there is a possibility that relatives through ex-nuptial relationships may make an unexpected appearance, they should, if that is the testator’s intention, be excluded, or the executor’s task may become very difficult. The danger is particularly great where gifts are made to grandchildren, or to children of brothers and sisters, where a parent, sibling or child of the deceased may have unknown or undiscoverable ex-nuptial descendants — perhaps after a colourful period overseas — whom the testator does not wish to benefit.

Ex-nuptial children: drafting a provision to exclude persons related through ex-nuptial relations 7.7 It is difficult to draft a provision which will effectively exclude ex-nuptial children. New South Wales 7.8 It is especially difficult to draft an effective provision for New South Wales. This is because of the very strong wording of s 6

of the Status of Children Act 1996 (NSW), and especially s 6(3). Section 6(2) and 6(3) read: (2) Unless a contrary intention appears … (a) a reference (however expressed) to the child or children of a person includes a reference to an ex-nuptial child of whom that person is a parent, and (b) a reference (however expressed) to any person or persons related to another person (other than as a parent or child) includes a reference to anyone who is so related in fact regardless that the person related in fact, or some other person through whom the relationship is traced, is or was an ex-nuptial child. (3) The use of any of the following words (or of any word or words having the same or a similar meaning) does not of itself indicate a contrary intention for the purposes of subsection (2): (a) the words ‘legitimate’ or ‘lawful’ when used with reference to the child or children of a person or persons related to another person in some other way, (b) the words ‘married’, ‘husband’ or ‘wife’ when used with reference to the parent or parents of a person.

It seems clear that the policy of the legislation generally is to ensure that testators do not disinherit ex-nuptial children. Although Form 7.03 is intended to be effective in all jurisdictions, including New South Wales, the operation of Form 7.03 in New South Wales is uncertain. The New South Wales provision (s 6(3)) is more strongly worded than the provisions in other jurisdictions, although the Attorney-General, the Hon FJ Walker, in his second reading speech (Assembly Debates, 16 November 1976, vol 127, p 2950) said that the Act: [page 122] … will not, nor is it intended to, prevent testators from being selective about their beneficiaries: that freedom is fully preserved in the measure.

The reasoning behind the wording of Form 7.03 is as follows. The wording of the New South Wales provision indicates that the legislation is directed towards the determination of kinship relationships between the child and that child’s parents: see Gorey

v Griffin [1978] 1 NSWLR 739 at 744B–744C per Hutley JA. The legislation does not, it seems, prevent the testator from choosing as beneficiaries some only of the persons who are in a specified relationship with the testator. Form 7.03 therefore accepts the relationships as established by the legislation, and discriminates between persons who are in the same relationship on the basis that, in order to inherit, the would-be beneficiary must satisfy not only the relationship criterion laid down in the statute, but must also be the child of a person to whom the child’s other parent was or became married. The same requirement applies to a person who seeks to benefit on the ground of the relationship through which the would-be beneficiary traces relationship to the testator. The words ‘lawful wedlock’ are used to avoid using the word ‘married’ referred to in s 6(3)(b) of the New South Wales Act. (Doubt remains because ‘lawful’ is referred to in s 6(3)(a) and ‘wedlock’ is a word having the same effect as ‘married’. Still, the section does appear to contemplate that a contrary intention could be expressed, without necessarily resorting to naming.) No firm assurance can be given that Form 7.03 will operate in New South Wales to exclude ex-nuptial children and those related to the testator through ex-nuptial children. Absolute certainty can be achieved only by express naming of persons, a course which has its own complexities and hazards. The most important of these are that express naming is cumbersome, and that a person may be incorrectly named or omitted by mistake, or because her or his identity is not known to the testator, or because he or she is born after the will is made. If naming is used, it can be done either by listing the names of those who are to inherit, or those who are not to inherit. The drafter will have to select the most convenient course. Usually, it will be better to name those who are to inherit. The then New South Wales Attorney-General, the Hon FJ Walker, in an article notes that s 6(3) means that the use of words such as ‘legitimate’ or ‘lawful’ is not sufficient to express an intention to exclude ex-nuptial beneficiaries. He continues: It is essential, therefore, that the disponor be explicit as to the persons whom he

intends to be the objects of his bounty: ‘The Children (Equality of Status) Act 1976’ (1977) 15 Law Soc J 45 at 46.

Walker also says (at 46): The entitlement of a person to succeed to property on the death of any intestate will … be determined irrespective of whether his parents or the parents of any other person through whom he claims are or ever have been married.

Form 7.03 has been drafted on the basis that these statements indicate a strictness that goes beyond the wording of the New South Wales Act. (They also [page 123] indicate a strictness which is absent from the statements of Hon FJ Walker in his second reading speech (Assembly Debates, 16 November 1976, vol 127, p 2950), quoted above.) In the light of the uncertainty, for New South Wales, the best method of excluding ex-nuptial relatives is to name the beneficiaries who are to take. Another possibility is to refer to ‘reputed relations’: see [7.10] and Form 7.04. A final possibility is to use a discretionary trust which gives to the trustee the power to choose beneficiaries from within a class: see Chapter 25. Jurisdictions other than New South Wales 7.9 Form 7.03 should be effective to exclude persons whose claims are based on an ex-nuptial relationship. The will drafter will have to bear conflict-of-laws principles in mind in this connection. All jurisdictions: another alternative; ‘reputed’ relations 7.10 There may be a middle path between the total exclusion of all relatives through ex-nuptial relationships and the inclusion of all relations in the specified class whether those relations are known or unknown. Thus, the testator could express an intention that relations are excluded if they are not, in addition, reputed

relations of the testator. This course of action creates some ambiguity, as is acknowledged by Aitken and Dowdle in Wills Precedents (Victoria), Law Book Co, Sydney, 1986, pp 111–14. Form 7.04 is relevant.

Child conceived but not yet born: en ventre sa mère 7.11 A person conceived but not yet born may be treated for many purposes as living at a specified time. In particular, such a person will be treated as living at a specified time for the purposes of participating in a gift to a class restricted to those ‘living at’ or ‘who survive’ the specified time. To be treated as living, the conceived but unborn child must subsequently be born alive; must be ‘within the reason and motive of the gift’; and the construction must ‘secure to the child a benefit to which it would have been entitled if it had actually been born at the relevant date’: Elliot v Joicey [1935] AC 209 at 233 and 234. The construction was treated by the House of Lords in Elliot v Joicey as ‘fictional’: see also Brennan v Permanent Trustee Co of NSW Ltd (1945) 73 CLR 404; Wesley v Wesley (1998) 71 SASR 1; Napper v Miller [2003] NSWSC 376; BC200302126. However, it is so widely accepted that precedents in the usual form will be construed to include a child conceived but not yet born (en ventre sa mère) that the precedents in this book are drawn on that assumption. Further authorities are collected in Stroud’s Judicial Dictionary, 7th ed, Sweet and Maxwell, London, 2007, in the entries on ‘Child’, ‘Born’ and ‘Living’. Some states specifically provide that references to a child or issue living at the death of any person include a child or issue en ventre sa mère at death.8 The New [page 124]

South Wales and Queensland provisions require the child to be born alive and survive for 30 days. The rule in Elliot v Joicey is not excluded by the 30-day survivorship provision: Wesley v Wesley (1998) 71 SASR 1. It is clear from Elliot v Joicey itself that a person who is en ventre sa mère at a time specified, and is born thereafter, qualifies for a gift made to a person who ‘survives’ that time. Although Wesley v Wesley is not completely clear on the point, it is submitted that a person who is required to survive a testator by 30 days must be conceived before the testator’s death and must either: be born alive before 30 days have elapsed since the testator’s death and must live on beyond 30 days after the testator’s death; or be born alive after 30 days have elapsed since the testator’s death. A child resulting from a fertilised ovum implanted into the mother after the death of the father is entitled to inherit on the father’s intestacy: Estate of K (1996) 5 Tas R 365.9

Guardian: testamentary guardian; state and territory legislation gives power to appoint 7.12 Every state and territory has legislation which gives each parent the right to appoint a guardian or guardians by will or deed to act after her or his death.10 The state and territory Acts are similar although not identical, and all — with the exception of Western Australia in relation to children born outside of marriage — must be read subject to the Family Law Act 1975 (Cth) Pt 7: see [7.14]. Sections 13 and 14 of the Guardianship of Infants Act 1916 (NSW) are quoted here as an example: 13 Rights of surviving parent as to guardianship (1) On the death of the father of a minor, the mother, if surviving, shall, subject to the provisions of this Act, be guardian of the minor, either alone or jointly with any guardian appointed by the father.

Where no guardian has been appointed by the father, or if the guardian or guardians appointed by the father is or are dead or refuses or refuse to act, the court may, if it thinks fit, appoint a guardian to act jointly with the mother.

[page 125] (2) On the death of the mother of a minor, the father, if surviving, shall, subject to the provisions of this Act, be guardian of the minor, either alone or jointly, with any guardian appointed by the mother. Where no guardian has been appointed by the mother, or if the guardian or guardians appointed by the mother is or are dead or refuses or refuse to act, the court may, if it thinks fit, appoint a guardian to act jointly with the father. 14 Power of mother and father to appoint guardians (1) The father of a minor may by deed or will appoint any person to be guardian of the minor after his death. (2) The mother of a minor may by deed or will appoint any person to be guardian of the minor after her death. (3) Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the minor so long as the mother or father remains alive, unless the mother or father objects to his so acting. (4) If the mother or father so objects, or if the guardian so appointed considers that the mother or father is unfit to have the custody of the minor, the guardian may apply to the court. The court may either refuse to make an order (in which case the mother or father shall remain sole guardian) or make an order that the guardian so appointed shall act jointly with the mother or father, or that he shall be sole guardian of the minor. Where the court makes an order that the guardian so appointed shall be the sole guardian of the minor, the court may make such order regarding the custody of the minor and the right of access thereto of its mother or father as, having regard to the welfare of the minor, the court may think fit, and may further order that the mother or father shall pay to the guardian towards the maintenance and education of the minor such weekly or other periodical sum as, having regard to the means of the mother or father, the court may consider reasonable. The powers conferred by this subsection may be exercised at any time and shall include power to vary or discharge any order previously made in virtue of those powers. (5) Where guardians are appointed by both parents, the guardians so appointed shall, after the death of the surviving parent, act jointly. (6) If under the preceding section a guardian has been appointed by the court to act jointly with a surviving parent, he shall continue to act as guardian after the death of the surviving parent; but if the surviving parent has appointed a guardian, the guardian appointed by the court shall act jointly with the

guardian appointed by the surviving parent.

Concept of guardianship and Family Law Act 1975 (Cth) 7.13 The older concepts of guardianship and custody which are central to all state and territory testamentary guardianship legislation, except that of Western Australia, are different from the concept of parental responsibility which is central to the Family Law Act 1975 (Cth) Pt 7, especially Div 2 — Parental Responsibility. [page 126] Halsbury’s Laws of Australia, LexisNexis Butterworths Online, [205-1930], accessed 1 April 2016, notes: The concept of guardianship at common law has both a wide and a narrow meaning. At its widest it encompasses all of the rights and powers that an adult may have over a minor. In its narrow sense it includes all such powers less those attributable to the child’s custodian. The narrow approach leaves the guardian with powers necessary to guard, protect or defend the child and his or her property from danger, loss or harm.

Long-term decisions affecting health, education (such as receiving and considering school reports and determining schools) and religion are guardianship decisions.11 In the context of the contrast between guardianship and custody, it seems that the distinctive common law duties of a guardian, on the one hand, and a custodian, on the other, are (first as to the guardian): … duties concerning the child ab extra; that is, a warding off; the defence, protection and guarding of the child, or his property, from danger, harm or loss that may enure from without. Custody essentially concerns control, and the preservation and care of the child’s person, physically, mentally and morally; responsibility for a child in regard to his needs, food, clothing, instruction and the like: Wedd v Wedd [1948] SASR 104 at 106–7 per Mayo J.

The old distinction between ‘guardianship’ and ‘custody’ is no longer used in the Family Law Act and is decreasingly used elsewhere.12 Indeed, the terms ‘guardianship’ and ‘custody’ were removed from the Family Law Act in 1996. Part VII Div 2 of the Family Law Act (ss 61A–61F) introduces the concept of ‘parental responsibility’. ‘Parental responsibility’ is defined, for the purposes of Pt VII, in s 61B. It means ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.13 Section 61C provides that ‘each of the parents of a child who is not 18 has parental responsibility for the child’. The Family Court’s former power to make orders for the custody and guardianship of a child has been replaced with a power to make parenting orders. Parenting orders can deal with any aspect of parental responsibility. For example, s 64B(6) allows the court to make an order that confers on a person responsibility for the long-term (or day-to-day) care, welfare and development of [page 127] the child.14 As a consequence, a parenting order can have the same practical effect as a pre-June 1996 order granting custody and guardianship. In general it would seem that guardianship given by will means guardianship in the broad sense of ‘all of the rights and powers that an adult may have over a minor’ (Halsbury’s Laws of Australia, [205-1930]); in other words, it includes care and control. Guardianship also carries the power to litigate on behalf of the child: Marriage of Newbery (1977) 27 FLR 246. State and territory guardianship legislation contains provisions relating to the powers of guardians, including testamentary guardians,15 and the relationship between this legislation and the Commonwealth Family Law Act is complex. The Australian

Encyclopedia of Forms and Precedents, LexisNexis Butterworths Online, [510-1093], accessed 1 April 2016 states: In the five referring states and in the territories and, in respect of a child of a marriage, in Western Australia, any appointment of a testamentary guardian by a parent who predeceases the other parent would be ineffective because parental responsibility would, under s 61C(1) of the Family Law Act 1975, vest in the surviving parent … Any matter arising concerning testamentary guardianship would be within the jurisdiction of the Family Court which would decide the matter having regard to the best interests of the child. Any appointment of a testamentary guardian would be subject to any existing or future order of the Family Court including, so far as relevant, a registered parenting plan. The operation of the State and Territory law is limited.

Western Australia 7.14

The Family Court Act 1997 (WA) s 71(1) provides:

(1) A person who is appointed under this section as a child’s guardian has parental responsibility for the child.

See also s 71(3) and (5). Section 68 of the Family Court Act 1997 provides: Meaning of ‘parental responsibility’: FLA s 61B In this Part — ‘parental responsibility’, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

Western Australia is alone among the states and territories in having adopted the Commonwealth concepts relating to parental responsibility. Thus, s 68 of the [page 128] Family Court Act 1997 refers to s 61B of the Family Law Act 1975 (Cth), which the Western Australian Act copies.

Advantages and disadvantages of appointing a guardian

7.15 There are advantages and disadvantages in appointing a testamentary guardian, but on balance it seems better to appoint a guardian than not to, particularly in situations where the children are young. Perhaps the appointment of a guardian is unnecessary if the children have reached, say, early or mid teens when the will is made. The testator should not automatically decide that appointing testamentary guardians is the best thing in the circumstances of her or his family. There are some risks that must be taken into account. Guardianship can only be changed by court order. The nominated guardian may feel morally obliged to undertake guardianship in the full sense of parental responsibility, including care and control, and if he or she does so, the task will be an onerous one, both socially and financially. The appointment as guardian could inhibit the family’s efforts to find a suitable home for the orphaned children. The children and the appointed guardian may not get on, and children reaching teenage years have strong views which have to be respected. Even where the children are very young when the will is made, the guardianship appointment may prove unsatisfactory if the children are teenagers when the will comes into force. Guardianship may be applied for inter vivos if needed. Further, the court can consent to specific actions in the absence of a guardian. In favour of the appointment of a guardian is the fact that without the consent of a guardian the child may have difficulty performing certain activities. J Seymour in Laws of Australia, Lawbook Online, [17.6.770], accessed 1 April 2016 identifies the duties of a guardian as being to care for the child and to maintain the child, and a power to physically control the child. Seymour then lists the powers of a guardian as being the powers to: make decisions concerning the child’s education; make decisions concerning the child’s religion; discipline the child;

consent to the child’s marriage; consent to the issue of a passport; make decisions as to the medical treatment of the child; decide the name by which the child is known; represent the child in legal proceedings; by deed or will, appoint a guardian for the child; bury a deceased child; and agree to the child’s adoption. These powers and duties are broadly compatible with the concept of parental responsibility in the Family Law Act 1975. Parents of young children should appoint a guardian for the children when the parents are making provision for what is to happen on the death of the survivor [page 129] of them, particularly if a parent is unlikely to live long. The sole parent of young children should appoint a guardian for them. Another indication in favour of appointing a guardian is that the testator is a migrant who does not want her or his children to return to relatives overseas.

Is testamentary guardian to act with surviving parent or not? 7.16 The Commonwealth has not removed the power of the states and territories to legislate on testamentary guardianship, nor is it an area that the Commonwealth has itself legislated on. State and territory provisions therefore continue to provide for the appointment of testamentary guardians, while the Family Law Act 1975 (Cth) provides for the rights and duties of guardians

subsequent to appointment.16 Where the Family Law Act 1975 applies, state and territory legislation is subject to it. Section 61C of the Family Law Act 1975 provides: (1) Each of the parents of a child who is not 18 has parental responsibility for the child. Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order. Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order. Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child. (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying. (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section). Note: Section 111CS may affect the attribution of parental responsibility for a child.

The section does not make it clear whether the appointment of a testamentary guardian can be effective at all if there is a surviving parent, or can take effect only with the consent of the surviving parent. A Dickey, Family Law, 5th ed, Lawbook Co, Sydney, 2007, p 264 says: The effect of the State and Territory provisions concerning testamentary guardianship, and in particular the position of a testamentary guardian who

[page 130] would assume this position where there is a surviving parent, is uncertain in light of the provisions of s 61C(1) of the Family Law Act 1975 (Cth). By s 61C(1), each

parent (in Western Australia, each party to a marriage: [s 69ZH(2)(b) of the Commonwealth Act]) ordinarily has full responsibility for their children. There would appear to be no room for another person to exercise parental powers or responsibilities in relation to a child unless the surviving parent consents to this. It is probable that no testamentary guardian can assume this position upon the death of a parent who has been deprived of full parental responsibility by a parenting order made under the Family Law Act, at least if the court has already made a decision on who is to exercise parental responsibility for the child concerned.

See also Australian Encyclopedia of Forms and Precedents, LexisNexis Butterworths Online, [510-1075]–[510-1085], accessed 29 April 2016, and B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context, Oxford, Melbourne, 2008, [6.5.3]. In general, the state and territory legislation provides that testamentary guardians are to act jointly with a surviving parent where there is one.17 However, in the Australian Capital Territory, Queensland and Western Australia joint guardianship does not automatically occur if a testamentary guardian is appointed while another guardianship exists. Under the Testamentary Guardianship Act 1984 (ACT) s 10: An appointment of a testamentary guardian of a child takes effect— (a) where the appointor is survived by a parent of the child— (i) if the instrument of appointment shows that the appointor intended the appointment to take effect on his or her death—on the death of the appointor; or (ii) in any other case—on the death of that parent; or (b) where the appointor is not survived by a parent of the child — on the death of the appointor.

The Succession Act 1981 (Qld) s 61D provides: (1) This section provides for when an appointment by will of a person as a guardian of a child takes effect. (2) If the appointor is not survived by a parent of the child, the appointment takes effect on the appointor’s death.

[page 131]

(3) If the appointor is survived by 1 or more parents of the child, the appointment takes effect as follows — (a) if the will shows that the appointor intended the appointment to take effect on the appointor’s death, the appointment takes effect on the appointor’s death; (b) otherwise, the appointment takes effect on the death of the last surviving parent.

The Family Court Act 1997 (WA) s 71 provides that while any person who has parental responsibility for a child may appoint a guardian or joint guardians by will, the appointment only takes effect if at the time of the appointor’s death the appointor was the only person with parental responsibility for the child. If the intention is that the appointment as testamentary guardian is to come into force only if there is no surviving parent or other guardian, the provision in the will should state this expressly. Reliance should not be placed on the general provisions in the Australian Capital Territory, Queensland and Western Australian legislation to prevent an accidental joint guardianship. If the testator does indeed intend to create a joint guardianship with the surviving parent, the will drafter should consult the relevant guardianship legislation and draft the will accordingly. In New South Wales, the Northern Territory, South Australia and Tasmania joint guardianship is presumed to exist between the surviving parent and the person appointed guardian by the deceased. As discussed earlier, this sits uncomfortably with the Commonwealth concept of parental responsibility as expressed in the Family Law Act 1975 (Cth). In the absence of clear judicial or legislative authority on the issue, a prudent approach to appointing testamentary guardians is suggested, particularly in New South Wales, the Northern Territory, South Australia and Victoria. The testator should communicate with the other parent of the children, even if the parents are estranged, to make sure that testamentary guardianship arrangements for the children are coordinated. It is unusual for a testator to intend to create a joint

guardianship with the other parent, even if the parents are estranged. Usually the testator wishes to appoint a testamentary guardian to act only if there is no surviving parent or other guardian or on the death or incapacity of the other guardian. It is particularly important that such wills be reviewed frequently to make sure that, as the children become older, the guardianship provisions in the will are modified or deleted as may be appropriate. In any case, the guardianship clause should include a condition relating to whether the other parent of the child is alive at the death of the testator, as is done in these precedents. Schedules could be used to define the circumstances when guardianship provisions are to operate: see [2.49]–[2.50] and [9.3]. If schedules are being used in a will for a blended family, it would probably be better not to use separate, additional schedules for the guardianship provision. The guardianship clause should rather be placed within the appropriate schedule; that is, at the end of [page 132] the schedule of provisions for the case where there is no surviving spouse. If no schedules are used, the guardianship clause should be placed with the machinery provisions of the will (such as the definitions and appointment of executors). Form 7.07 applies.

Appointing more than one testamentary guardian 7.17 While some state and territory legislation expressly provides that a person can appoint more than one testamentary guardian, it is suggested that it is generally unwise to appoint

more than one, as conflict may develop between the appointees. Even if a happily married couple are appointed, the marriage could later end in trouble. It seems preferable to appoint a substitute to act if the first guardian ‘is or becomes unwilling or unable to act or continue to act’ as guardian, rather than to appoint guardians to act together. It is not clear what would be the legal relationship between a surviving parent–guardian and two or more testamentary guardians. Form 7.08 applies.

Power of guardians who are not parents to appoint testamentary guardians 7.18 In the Australian Capital Territory, Queensland and Western Australia, guardians who are not parents have the right to appoint testamentary guardians.18 Form 7.09 is appropriate. In the other jurisdictions only a parent may appoint a testamentary guardian.

Choice of executors where guardian is appointed 7.19 The choice of executors where there are minor children for whom a testamentary guardian is to be appointed is always difficult. Although in general it is usual to appoint the same people to be executors and trustees, it may be that where a testamentary guardian is to be appointed an exception should be made. Professor Stephen Parker has suggested to the author that it may be better to appoint two businesslike persons to be the executors (who will wind up the estate), but to have two trustees for the children, one of whom is the testamentary guardian, the other coming from the other branch of the family. At least two executors should be chosen, and there is something to be said for appointing the guardian as one of the executors. If the estate is large or complex it may perhaps be appropriate to appoint an

institutional executor — the Public Trustee or a trustee company — as one of the executors: see [10.09]. Generally, however, it is probably better to appoint a close relative or close family friend as the other executor. On the choice of executors, see Chapter 10. [page 133]

Minor children: carers, financial provision for 7.20 It is always difficult to ensure that persons caring for minor children, whether guardians or not, do not suffer financial hardship as a result of undertaking the carer’s role. Although a trustee is empowered by executors’ powers (Form 29.01 para (1) (d)), to apply income and capital for the maintenance, education, advancement or benefit of minor beneficiaries, problems arise, particularly where the carer must extend the house or purchase a larger house or vehicle to accommodate the larger family. Expenditure on these items is a difficult issue, because it benefits the carer as well as the orphaned children. Carers may tend to burden themselves too much in preserving the inheritance for the children. These problems should be discussed with the testator. A number of possible solutions exist. Form 7.05 is useful. It gives additional powers to the executors, and indicates to executors the general approach to adopt. Form 7.05 is modelled on RFD Barlow, CH Sherrin, RA Wallington, S Meadway and M Waterworth, Williams on Wills, 9th ed, LexisNexis Butterworths, UK, 2008, vol 2, Forms B18.30 and B18.31. The testator may wish to use Form 7.05(2) alone; that is, without subclause (1). Another possibility which may appeal is to make a will appointing a guardian and giving a substantial gift, for example a house, absolutely and unconditionally to the guardian, on the principle that if the guardian is sufficiently trustworthy to be

asked to undertake the task of bringing up the children, he or she may be trusted to treat the testator’s children in a loving way financially as well. The risk is that the guardian might retain the gift and make no further provision for the testator’s children. The gift to the guardian would be removed when the children become older and the guardianship provision is removed from the will. The executor might consider asking the guardian to make appropriate testamentary provision for the testator’s children.

FORMS FORM 7.01 Exclusion of adopted or surrogate children Where a person would, apart from this provision, have been entitled to a benefit under my will because a particular category of relationship exists between that person and myself, that person is not entitled to that benefit unless none of the child/parent relationships through which that person traces her or his relationship to me is a relationship arising by adoption or surrogacy where a parentage order has been made. FORM 7.02 Exclusion of foster or stepchildren For the purposes of this will, persons who are either foster children or stepchildren are not ‘children’. FORM 7.03 Exclusion of ex-nuptial children [This form is probably not effective in New South Wales.] [page 134] Where a person would, apart from this provision, have been entitled to a benefit under my will because a particular blood relationship exists between that person and myself, that person is not entitled to that benefit unless in each child/parent relationship through which that person traces her or his relationship to me the parents of each child were: (a) a man or woman through whom the relationship to me is traced; and (b) a person with whom the man or woman: (i) was in lawful wedlock when the child was born; or (ii) subsequently entered lawful wedlock. FORM 7.04 Alternative form for exclusion of ex-nuptial children Where a person would, apart from this provision, have been entitled to a benefit under my will because a particular blood relationship exists between that person and myself, that

person is not entitled to that benefit unless that person is reputed to be in that relationship with me. FORM 7.05 Carer or guardian not to suffer financial hardship [The testator may wish to use Form 7.05(2) alone; that is, without subclause (1).] (1) Whether or not in so doing they exhaust my estate, my executors may make loans: (a) whether secured or unsecured; (b) on interest or interest free; (c) on whatever terms my executors (without being liable for loss) think fit; to any person caring for any of my children (whether as guardian or otherwise) (even though that person is also my executor) from the presumptive share of the trust fund of that child or those children. (2) I wish my executors to exercise their powers so as to ensure (so far as seems to them reasonable having regard to the funds at their disposal and other relevant matters) that any person caring for any of my children (whether as guardian or otherwise) does not suffer in the course of caring for those children a financial burden or loss (whether or not it is incurred strictly within her or his duties as carer or guardian), and I trust that the carer will accept it as my wish that the powers be exercised in this way. FORM 7.06 Appointment of testamentary guardian [Do not use if there is in existence another parent, unless the testator intends to create a joint guardianship with the surviving parent. Schedules may be used to define precisely the circumstances in which the guardianship is to come into effect. On the use of schedules, see [2.49]–[2.50], [9.3].] [If the testator does intend to create a joint guardianship, the testator should consult the relevant guardianship legislation, and should add the words: If (name of other parent) is still alive, the said (name of appointed guardian) is to act jointly with the said (name of other parent). See [7.16].] I appoint [name] of [address] guardian of my minor children. [page 135] FORM 7.07 Appointment of testamentary guardian to act only if there is no surviving parent If [name of other parent] does not survive me, I appoint [name] of [address] guardian of my minor children [(or, if appropriate) those of my minor children who are also children of (name of other parent)]. FORM 7.08 Appointment of testamentary guardians to act only if there is no surviving parent If [name of other parent] does not survive me, I appoint [name] of [address], guardian of my minor children [(or, if appropriate) those of my minor children who are also children of (name of other parent)] and if unwilling or unable to act or continue to act then I appoint [name] of [address] as the substitute guardian. FORM 7.09

Appointment of guardian by a guardian who is not a parent

[Will be effective only in the Australian Capital Territory, Queensland and Western Australia.] I appoint [name] of [address] guardian in my place of [name] of [address], whose guardian I am.

1.

See generally RF Atherton and P Vines, Succession: Families, Property and Death, 4th ed, LexisNexis Butterworths, Sydney, 2013, [2.18]ff; and Halsbury’s Laws of Australia, adoption 205-III-(8), LexisNexis Butterworths Online, accessed 1 April 2016. The authors of the 7th edition were grateful to John Seymour for help in preparing this chapter.

2.

ACT: Adoption Act 1993 s 43(1)(a); NSW: Adoption Act 2000 s 95(2)(a)–(c); NT: Adoption of Children Act s 45(1)(a), (c); Qld: Adoption Act 2009 s 214(2); SA: Adoption Act 1988 s 9(1); Tas: Adoption Act 1988 s 50(1)(a), (c); Vic: Adoption Act 1984 s 53(1)(a), (c); WA: Adoption Act 1994 s 75(1)(a), (d). ACT: Adoption Act 1993 s 43(1)(b); NSW: Adoption Act 2000 s 95(2)(d); NT: Adoption of Children Act s 45(1)(b), (c); Qld: Adoption Act 2009 s 214(3); SA: Adoption Act 1988 s 9(1); Tas: Adoption Act 1988 s 50(1)(b), (c); Vic: Adoption Act 1984 s 53(1)(b), (c); WA: Adoption Act 1994 s 75(1)(b)(i), (d).

3.

4.

5.

6.

7.

8.

9.

ACT: Adoption Act 1993 s 43(1)(c); NSW: Adoption Act 2000 s 95(3); NT: Adoption of Children Act s 15(4); Qld: Adoption Act 2009 s 204(3); SA: Adoption Act 1988 s 9(2); Tas: Adoption Act 1988 s 20(8); Vic: Adoption Act 1984 s 11(7); WA: Adoption Act 1994 s 75(2). ACT: Parentage Act 2004; NSW: Surrogacy Act 2010; Qld: Surrogacy Act 2010; SA: Family Relationships Act 1975; Tas: Surrogacy Act 2012; Vic: Status of Children Act 1974; WA: Surrogacy Act 2008. ACT: Parentage Act 2004 s 29; NSW: Surrogacy Act 2010 ss 39, 40; Qld: Surrogacy Act 2010 ss 39, 40; SA: Family Relationships Act 1975 s 10HB(13); Tas: Surrogacy Act 2012 s 26; Vic: Status of Children Act 1974 s 26; WA: Surrogacy Act 2008 s 26. Cth: The Family Law Act 1975 (Cth) is based on the principle of equality of status. The Act does not, however, affect the common law rule of construction that the use of a word indicating relationship in a will is presumed to refer to legitimate relations only; ACT: Parentage Act 2004 s 38; Wills Act 1968 s 31A; NSW: Status of Children Act 1996; NT: Status of Children Act; Qld: Status of Children Act 1978; SA: Family Relationships Act 1975 s 6; Tas: Status of Children Act 1974; Vic: Status of Children Act 1974; WA: Wills Act 1970 Pt 9 (wills); Administration Act 1903 s 47A (intestacy); Family Provision Act 1972 s 4 (family provision); Property Law Act 1969 s 31A (transactions inter vivos). See also A Dickey, Family Law, 6th ed, Law Book Co, Sydney, 2013, Ch 16. NSW: Succession Act 2006 s 3(2); Qld: Succession Act 1981 s 5A; Tas: Administration and Probate Act 1935 s 3(2); Vic: Administration and Probate Act 1958 s 5(2); WA: Western Australia has a similar provision in relation to family provision: Family Provision Act 1972 s 7(1). See generally Abbot v Territory Insurance Office Board [2003] NTSC 37; RF Atherton,

‘Artificially Conceived Children and Inheritance in New South Wales’ (1986) 60 ALJ 374; M Smith, ‘Inheritance Rights and Artificial Conception’ (1996) 70 ALJ 972; D Chalmers, ‘Inheritance Rights of Embryos’ (1996) 15 U Tas L Rev 131 (comment on Re Estate of K (1996) Tas SR 365); ‘Frozen Embryos: Rights of Inheritance as Decided in the Case In re the Estate of the Late K’ (1997) Medical Law Review 121; D Clark, ‘En Ventre sa Frigidaire: Zygotes as Children’ (1996) 21 Alternative LJ 165 (comment on Re Estate of K (1996) Tas SR 365); RF Atherton and P Vines, Succession: Families, Property and Death, 4th ed, LexisNexis Butterworths, Sydney, 2013. 10. ACT: Testamentary Guardianship Act 1984 s 8; NSW: Guardianship of Infants Act 1916 ss 13, 14; NT: Guardianship of Infants Act s 16; Qld: Succession Act 1981 Pt 5A; SA: Guardianship of Infants Act 1940 s 13; Tas: Guardianship and Custody of Infants Act 1934 ss 4, 5, 6; Vic: Marriage Act 1958 s 135; WA: Family Court Act 1997 s 71. 11. McEnearney v McEnearney [1980] FLC 90-866 at 75,501 per Nygh J, which concerned health and education (substituting ‘guardianship’ for ‘custodianship’, since it seems that Nygh J used the word ‘custodianship’ in the sense of ‘guardianship’ — the decision was handed down before the definition sections in the Family Law Act 1975 were enacted); Capodici v Capodici (1967) 12 FLR 129 at 135–6, which dealt with religion; Halsbury’s Laws of Australia, [205-1790] (education), [205-1810] (religion), LexisNexis Butterworths Online, accessed 1 April 2016. 12. See A Dickey, Family Law, 6th ed, Lawbook, Sydney, 2013, Chs 18 and 19. 13. Halsbury’s Laws of Australia, [205-1670]–[205-1800], LexisNexis Butterworths Online, accessed 1 April 2016; Australian Encyclopedia of Forms and Precedents, [510-1070]ff, LexisNexis Butterworths Online, accessed 1 April 2016. 14. Australian Encyclopedia of Forms and Precedents, [510-1070]ff, LexisNexis Butterworths Online, accessed 1 April 2016. 15. ACT: Testamentary Guardianship Act 1984 s 11; NSW: Guardianship of Infants Act 1916 s 19; NT: Guardianship of Infants Act s 18; Qld: Succession Act 1981 s 61E; SA: Guardianship of Infants Act 1940 s 15; Tas: Guardianship and Custody of Infants Act 1934 s 8; Vic: Marriage Act 1958 s 139. See also Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, discussing the diminishing nature of parental powers — diminishing, that is, as the child grows older. See too B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context, Oxford, Melbourne, 2008, [6.5.4]. 16. Australian Encyclopedia of Forms and Precedents, LexisNexis Butterworths Online, accessed 1 April 2016, [510-1070]ff. 17. ACT: Testamentary Guardianship Act 1984 s 11(4); NSW: Guardianship of Infants Act 1916 s 14(3). The court will consider any objection to the joint guardianship, s 14(4); NT: Guardianship of Infants Act s 16(3). The court will consider any objection to the joint guardianship, s 16(4); Qld: Succession Act 1981 s 61F; SA: Guardianship of Infants Act 1940 ss 12 and 13. The court will consider any objection to the joint guardianship; Tas: Guardianship and Custody of Infants Act ss 4, 5 and 6. Archaic provisions lay down that the mother’s appointment of a joint guardian with the father is provisional, subject to confirmation by the court; but the father’s appointment of a joint guardian with the mother is absolute; Vic: Marriage Act 1958 s 135. The court has power to remove a guardian, s 138; WA: Family Court Act

1997 s 71. The court will consider any objection to the joint guardianship. 18. ACT: Testamentary Guardianship Act 1984 s 8; Qld: Succession Act 1981 s 61C; WA: Family Court Act 1997 s 71.

[page 137]

Chapter 8 WILL MADE IN CONTEMPLATION OF MARRIAGE; THE EFFECT OF DIVORCE Introductory Notes Revocation by marriage: legal principles 8.1 Marriage revokes a will1 unless: it is expressed to be in contemplation of that particular marriage; or in New South Wales, Northern Territory, Queensland, South Australia, Tasmania and Victoria, it is made in contemplation of marriage generally (but not in the Australian Capital Territory or Western Australia). Entering into a civil union or civil partnership (in the Australian Capital Territory), or a registered relationship (Queensland and Tasmania) has the same effect. The following will provisions are exempt from the general rule: gifts to the spouse (except in South Australia); appointment of the spouse as executor (except in South Australia); and exercise of a power of appointment which if not exercised would not otherwise pass to the executor or administrator (or in New

South Wales, the NSW Trustee and Guardian; in the Northern Territory, the Public Trustee; in Victoria, the State Trustee). Australian legislation dealing with revocation by marriage is not uniform, and the will draftsperson who is preparing a will for a client who intends to or might marry should be familiar with the relevant legislation.

Drafting contemplation of marriage provision 8.2 Form 8.01 is appropriate where the testator is making a will in contemplation of marriage, but the provisions will be different according to whether the testator dies: after the marriage; before the marriage but while the marriage is still contemplated; or [page 138] after making a decision not to proceed with the marriage. Form 8.01, with the appropriate provisions filled out for each eventuality, ensures that all possibilities are covered. Each schedule will contain a complete set of gift provisions. The executors’ powers clause, and any guardianship of children clause, will be placed in the will outside the schedules if they operate in every case, and inside a schedule if they are to operate only in the particular case covered by that schedule.

Will not conditional on marriage 8.3 If the will is not conditional on the marriage taking place, Form 8.02 should be used. This form is useful to prevent accidental revocation by marriage of wills of partners who do not intend to marry each other, but might conceivably do so: see [8.4].

Domestic partners 8.4 It often happens that persons in a domestic partnership will marry each other at some time, even if they do not presently intend to do so. It follows that if they agree that they may at some time marry, their wills should be expressed to be in contemplation of that marriage. If this is not done their wills may, contrary to their wishes, be revoked by their subsequent marriage. Form 8.02 is appropriate.

Will made in contemplation of marriage generally 8.5 Form 8.03 is appropriate where a testator wishes to make his or her will in contemplation of marriage generally. However, the legislation in the Australian Capital Territory (Wills Act 1968 (ACT) s 20) and in Western Australia (Wills Act 1970 (WA) s 14) does not apply to wills made in contemplation of marriage generally from the usual rule that marriage revokes a will. Accordingly, Form 8.03 should not be used where the testator is domiciled in those jurisdictions.

Effect of divorce 8.6 All jurisdictions have legislation to deal with the effect of dissolution of marriage on a will.2 In the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia and Victoria the legislation provides, in broad terms, that where a testator makes a will and later the testator’s marriage is terminated, appointments of the former spouse as executor, trustee or guardian are taken to have been omitted from the will or treated as if the appointee had died before the testator. Also, gifts in favour of the former spouse are revoked, the subject matter of the failed gifts passing as if the former spouse had predeceased the testator. The provisions operate subject to the

testator’s contrary intention. Some, but not all, jurisdictions require that the contrary intention be expressed in the will. [page 139] In the Australian Capital Territory and Tasmania the provisions extend their effect to the termination of relationships other than divorce. In the Australian Capital Territory the Wills Act 1968 (ACT) s 20A extends to the termination of a civil partnership, in Tasmania the Wills Act 2008 (Tas) s 17 extends to revocation of a deed of relationship registered under Pt 2 of the Relationships Act 2003 (Tas) and in Queensland the Succession Act 1981 s 15A (Qld) extends to the end of a registered relationship. The Wills Act 1970 (WA) s 14A(2) provides simply that: A will is revoked by the ending of the testator’s marriage except where — (a) a contrary intention appears in the will; or (b) there is other evidence establishing such an intention.

The Western Australian provision is drastic. A will made during the marriage may well contain provisions unrelated to the spouse or partner. These provisions might include trusts for children, or gifts to charity. Simply providing that the whole will is revoked means that all these provisions are lost together with the gifts and appointments in favour of the spouse or partner. It is unfortunate that the Western Australian provision which was inserted in 2007 did not at least to some extent model itself on the much better provisions in other jurisdictions. A will draftsperson preparing a will for a person contemplating divorce (or, in the Australian Capital Territory, termination of a civil union or civil partnership; in Tasmania, the revocation of a deed of relationship) should be familiar with the relevant local legislation. In New South Wales, Western Australia, Northern Territory, Queensland and South Australia, an exception to the application of the usual rule for the effect of divorce is permitted if

a contrary intention is found in the will. In Victoria the affected will provisions may not be revoked if it appears that the testator did not want the disposition, appointment or power of appointment to be revoked on the ending of the marriage. In the Australian Capital Territory the affected will provisions may not be revoked if the court is satisfied that at the time of the divorce the testator did not intend to revoke the gift, power of appointment or appointment. In any case a testator who is contemplating divorce and intends that the divorce not affect the will must, in the will, express the contemplation of divorce and the intention that the will is not to be affected by it. From 8.04 is appropriate where a testator instructs that he or she does not wish for gifts to, or appointments of, his or her spouse, to be revoked on divorce or annulment of the marriage. Form 8.05 is appropriate in the case of a civil union or civil partnership (Australian Capital Territory). Form 8.06 is appropriate in the case of a revocation of a deed of relationship (Tasmania) and Form 8.07 is appropriate in the case of a registered relationship (Queensland). In each case the name of the spouse should be inserted; and the form should only be included on express instructions. These forms would generally only be appropriate where the testator contemplates that the relationship may end, having regard to the possibility for changing circumstances. In any case, wills should be reviewed upon the occurrence of significant life events, such as marriage, divorce, or the birth of children. [page 140]

FORMS

FORM 8.01 Contemplation of marriage expressed: will conditional on marriage [On the use of schedules, see [9.3] and compare [2.49]–[2.50].] 1. In this clause the prescribed date is [the last date before which the marriage, if it is ever to take place, will have taken place. The prescribed date will be a date some time after the scheduled date for the marriage, to allow for possible delay due to illness, etc; for instance, the prescribed date might be set at one month after the scheduled date for the marriage]. 2. This will is made in contemplation of my marriage with [name of other party]. 3. If the marriage takes place, Schedule 1 applies. 4. If I die before the prescribed date, not being married to [name of other party], Schedule 2 applies. 5. If I die on or after the prescribed date, not being married to [name of other party], Schedule 3 applies. FORM 8.02 Contemplation of marriage expressed: will not conditional on marriage This will is made in contemplation of my marriage with [name of other party], and is not void if the marriage does not take place. FORM 8.03 Contemplation of marriage generally This will is made in contemplation of marriage generally. NB: This form should not be used where the testator is domiciled in the Australian Capital Territory or Western Australia — see [8.5]. FORM 8.04 Will not to be revoked on divorce or annulment This will is made with the intention that [it/the gifts/the appointments/the exercise of power of appointment at clauses [here specify]] not be revoked upon divorce from or annulment of my marriage to, my spouse [state name of spouse]. NB: In Victoria this form will only be effective if it appears that the testator did not want the disposition to be revoked on the ending of the marriage. In the Australian Capital Territory this form will only be effective if the court is satisfied that, at the time of termination of the marriage, the testator did not intend the gift, appointment, or exercise of power of appointment, to be revoked. FORM 8.05 Will not to be revoked on termination of civil union or civil partnership This will is made with the intention that [it/the gifts/the appointments/the exercise of power of appointment at clauses [here specify]] not be revoked upon termination of my civil union/civil partnership with my spouse [state name of spouse]. NB: This form is only relevant to testators domiciled in the Australian Capital Territory. It will only be effective if the court is satisfied that, at the time of termination of the civil union or civil partnership, the testator did not intend the gift, appointment, or exercise of power of appointment, to be revoked. [page 141]

FORM 8.06 Will not to be revoked on revocation of deed of relationship This will is made with the intention that [it/the gifts/the appointments/the exercise of power of appointment at clauses [here specify]] not be revoked upon revocation of my deed of relationship with my spouse [state name of spouse]. NB: This form is only relevant to testators domiciled in Tasmania. FORM 8.07 Will not to be revoked on termination of registered relationship This will is made with the intention that [it/the gifts/the appointments/the exercise of power of appointment at clauses [here specify]] not be revoked upon the termination of my registered relationship with my spouse [state name of spouse]. NB: This form is only relevant to testators domiciled in Queensland.

1.

2.

ACT: Wills Act 1968 s 20 (includes entering a civil partnership); NSW: Succession Act 2006 s 12; NT: Wills Act s 14; Qld: Succession Act 1981 ss 14, 14A (includes registration of a relationship pursuant to the Relationships Act 2011); SA: Wills Act 1936 s 20; Tas: Wills Act 2008 s 16 (includes the registration of a deed of relationship under Pt 2 of the Relationships Act 2003); Vic: Wills Act 1997 s 13; WA: Wills Act 1970 s 14. ACT: Wills Act 1968 s 20A; NSW: Succession Act 2006 s 13; NT: Wills Act s 15; Qld: Succession Act 1981 ss 15, 15A; SA: Wills Act 1936 s 20A; Tas: Wills Act 2008 s 17; Vic: Wills Act 1997 s 14; WA: Wills Act 1970 s 14A; USL: The National Committee for Uniform Succession Laws has recommended adoption of a sophisticated provision in accord with the Wills Act 1997 (Vic) s 14: see New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills, Report 85, April 1998, pp 66–71.

[page 143]

Chapter 9 PROVISION FOR SPOUSE OR PARTNER Introductory Notes Gift to surviving spouse or partner: structure of wills and family provision risk 9.1 The potential for a family provision claim by the surviving spouse must be considered at the time of the making of the will. The solicitor should explain the family provision legislation to the client: There are certain categories of persons eligible to make a family provision claim against a deceased estate. To be successful in a family provision claim, a plaintiff must satisfy the court that adequate provision has not been made for him or her in the will. The court has a discretion in relation to these matters. Community expectations, and whether objectively it would be considered that the testator had a moral duty to provide for the person, are sometimes used as a measure. The court takes into account a range of considerations, including the size of the estate (and in New South Wales, notional estate), the material and financial circumstances of the plaintiff and of the competing beneficiaries; the relationship between the testator and the beneficiaries, and other relevant conduct. Unless the court authorises orders, a family provision order

operates as a codicil to the will, altering the terms of the will. See Chapter 14 on family provision claims. A testator may wish to appoint their spouse or partner as their executor and to give the whole of the estate to them. The gift to the surviving spouse or partner should be a paragraph in the clause containing the beneficial gifts, which starts with the words in Form 18.01 ‘My executors hold my estate on trust’. The client should be asked about their children, their dependants and other persons eligible to make a family provision claim: see [14.2]. The client may then ask the draftsperson whether he or she should make provision for those people. The following comments are offered as the opinion of the authors: In cases where the testator’s estate is only large enough to make adequate provision for the spouse, and that is the testator’s wish, the testator should [page 144] not be encouraged to make provision for other eligible persons. Apart from preparing and attending on the execution of a will reflecting the instructions, in New South Wales (where notional estate provisions apply), there may not be much more that can be done to reduce the risk of a family provision claim. In other jurisdictions, in the absence of notional estate provisions, a testator might consider making inter vivos gifts to the intended beneficiary, if the particular circumstances warrant it, and having regard to social security, tax and other considerations, but on the other hand it may not be in the client’s best interests to divest themselves of assets. Where the testator’s estate is large enough for some provision to be made, and the family provision legislation has been explained to the testator: – If the testator instructs that he or she wishes to make some

provision for other eligible persons objectively in need of provision, the provision should reflect an objective assessment of the provision likely to be adequate for the person. The draftsperson should explain the various forms in which provision could be made (alternatives in the case of a blended family are discussed at [9.11]–[9.23]), but the draftsperson should refrain from giving specific advice as to the quantum of provision. The discretionary nature of the family provision jurisdiction means that a court’s assessment of adequate provision is likely to differ from the assessment of the draftsperson; the draftsperson is unlikely to have full information about the person’s material and financial circumstances and the passage of time between the making of the will and the time of hearing of any family provision claim may mean that the financial and material circumstances of the testator, and the prospective plaintiff, may change. – If the testator instructs that he or she is unsure, or does not wish to make provision for other eligible persons objectively in need of provision, provision should not be encouraged. Many family provision claims settle at mediation, or prior to hearing. If a prospective plaintiff makes a claim, he or she will not settle for less than the provision made for him or her in the will, and the gift will become a low watermark. In that sense, making no provision in the will for the prospective plaintiff may make it easier to settle the claim when made. What is set out above is the opinion of the authors, and these are matters on which reasonable minds may differ. If the testator instructs that he or she wishes to benefit persons other than his or her spouse, again the family provision legislation should be explained to the testator, and he or she should also carefully consider whether the provision for the surviving spouse would be considered adequate if a family provision claim were brought by him or her: see [14.4] on the level of provision for the

surviving spouse and [14.3] on whether the testator should keep the terms of the will secret from the beneficiaries. It will generally be appropriate for a testator to discuss their will with their spouse prior to giving instructions for it, so that the testator can take their spouse’s views into account. [page 145] Subject to the client being advised of family provision risk, gifts of any kind may be made to the surviving spouse or partner. Suitable forms include: Form 27.01, for a gift of the whole estate (or the residue of the estate); Form 19.01, for a pecuniary legacy; Form 20.01, for a legacy of a specific item of personal property; Form 22.01, for a devise of a specific item of real property; and the forms in the chapters on annuities (Chapter 24), trusts (Chapter 25) and life estates (Chapter 26).

Providing for failure of gift for unforeseen or unexpected circumstances 9.2 In early editions of this book, the form used for the gift to the surviving spouse or partner was worded to deal with failure of the gift for reasons other than the failure of the spouse or partner to survive the testator by 30 days. In more recent editions, however, neither the forms in this chapter nor the forms in Chapters 19–27 are expressed to bring the later provisions in the will into operation if the survivor fails to inherit for a reason other than failure to survive the testator. It seems better to leave the consequences of failure to inherit by reason of unforeseen circumstances to be settled by negotiation or litigation rather than

to provide expressly and perhaps unsatisfactorily for unforeseeable situations which will only rarely occur. On the effect of unforeseen circumstances on the will, such as the beneficiary who takes her or his benefit by fraud (Pettit v Mowder [1957] St R Qd 493), or the testator who is killed by her or his spouse, see, for example, Davis v Worthington [1978] WAR 144; Re Barrowcliff [1927] SASR 147; Re Keid [1980] Qd R 610; Public Trustee v Hayles (1993) 33 NSWLR 154; Eckert v Mereider (1993) 32 NSWLR 729; Egan v O’Brien [2006] NSWSC 1398; BC200610480; Verrall v Jackson [2006] QSC 309; BC200608464; CJ Rowland, ‘The Construction or Rectification of Wills to Take Account of Unforeseen Circumstances Affecting their Operation (Pt I)’ (1993) 1 APLJ 87; ‘The Construction or Rectification of Wills to Take Account of Unforeseen Circumstances Affecting their Operation (Pt II)’ (1993) 1 APLJ 193; Wills Act 1968 (ACT) s 12A(2). It is not necessary to word a class gift or a gift to a group expressly to take account of these possibilities (Re Peacock [1957] l Ch 310) and the precedents in Chapters 19–27 reflect this view: see too [27.26].

Schedules: useful for provision for spouse or partner in complex will 9.3 In situations where the will is complicated, schedules are a convenient method of ensuring that the provisions that are to operate if the testator’s spouse or partner survives the testator are identified and kept separate from the provisions that are to operate if the spouse or partner does not survive the testator. Schedules are unnecessary in a straightforward will where the testator’s family is not a blended family and the testator is providing for a spouse or partner and [page 146] children who are children of the testator and the spouse or partner

— all the gift provisions can be in a single clause beginning with Form 18.01 ‘My executors hold my estate on trust’. However, if the gift provisions are complicated — as is likely to be the case where there is a blended family and the surviving spouse or partner is not to take the whole estate — the use of schedules is recommended. (The special problems relating to wills of testators in blended families are discussed below: see [9.11].) There is a general explanation of the use of schedules in [2.49]–[2.50]. The will draftsperson who decides to use schedules to provide for a surviving spouse or partner should appreciate the difference between administrative (or machinery) provisions, and beneficial gifts.

Administrative (machinery) provisions 9.4 The administrative or machinery provisions, which are not normally beneficial gifts, include: the revocation clause; directions as to the disposal of the body; the provision as to order of deaths; testamentary guardianship provisions; a contemplation of marriage provision; the appointment of executors; a payment of executors provision (although such provisions are likely to be or include beneficial gifts, they still belong with the administrative provisions); a provision made for executors to buy trust assets; a provision concerning solicitors to be employed by the executors; a release from a debt; the clause setting up the schedules for the blended family

provisions and defining when they are to operate (Form 9.01); and the executors’ powers provisions.

Placing administrative provisions in wills using schedules 9.5 For reasons of convenience those administrative provisions which are not dependent on whether the testator is survived by the other testator, as well as the clause setting up the schedules, are placed in separate numbered clauses at the beginning of the will. These clauses are not placed in either schedule; rather, they precede the schedules. So, for example: the revocation clause; directions as to the disposal of the body; the provision as to order of deaths; a contemplation of marriage provision; and [page 147] the clause setting up the schedules for the blended family provisions and defining when they are to operate (Form 9.01), would be placed at the beginning of the will before the first schedule: see the model will in Appendix B [B.05]. Those machinery provisions which are dependent on whether the testator’s spouse or partner survives the testator are placed in the schedules. These clauses would include: testamentary guardianship provisions; the appointment of executors; probably, any payment of executors provision; probably, any provision regarding executors’ right to buy trust assets; and

a provision regarding solicitors to be employed by the executors. The executors’ powers provisions (Form 29.01) are machinery provisions. Simply because of their length, the executors’ powers provisions are separated from the other administrative and machinery provisions, and are placed at the end of the will in a separate schedule (it will usually be Schedule 3) rather than as a separate clause with the other administrative and machinery provisions: see further [2.49] and the model will in Appendix B [B.05].

Placement of beneficial provisions in schedules; summing up placement of administrative and beneficial provisions 9.6 If a beneficial gift provision is to operate whether or not the testator’s spouse or partner survives the testator, it should be placed in both Schedule 1 and Schedule 2. So, for example, if a legacy of $10,000 is to take effect in either case, the legacy should be placed in both Schedule 1 and Schedule 2. If a beneficial gift is to operate only if the spouse or partner survives the testator, or only if the spouse or partner does not survive the testator, it should be placed only in the appropriate schedule. A summary of the placement of administrative and beneficial provisions in schedules where Form 9.01 is used follows: the administrative provisions which are to operate in any event, that is, irrespective of which testator survives the other, are placed at the beginning of the will above Schedule 1; the beneficial provisions which are to operate irrespective of which testator survives the other are placed in both Schedule 1 and Schedule 2; the administrative provisions and beneficial gifts which are to operate only if the testator’s spouse or partner survives the testator are placed in Schedule 1: see [B.05]; the administrative provisions and beneficial gifts which are to

operate only if the testator’s spouse or partner does not survive the testator are placed in Schedule 2: see [B.05]; and [page 148] the executors’ powers provisions, which will be intended to operate in either case, are placed in Schedule 3: see [B.05]. The model will in Appendix B [B.05] and [B.06] is an illustration.

Exclusion of 30-day survivorship requirement in wills using schedules, and legacies in wills of spouses or partners 9.7 In contrast with the general policy adopted in this book, the provisions setting up the schedules (Form 9.01) are conditional not on whether or not the spouse or partner survives the testator by 30 days but simply on whether or not the spouse or partner survives the testator. In other words, the clause setting up the schedules contains a provision requiring all the provisions in the will to operate when the testator dies — it excludes any statutory 30-day survivorship requirement. The reason for excluding the statutory 30-day survivorship provisions is that they operate only in relation to beneficial provisions, and not in relation to administrative provisions. This makes it impossible to word the condition for the schedules to operate in such a way that the administrative and the beneficial provisions in a schedule operate together. It follows that if the 30day survivorship provision is not excluded, the administrative provisions must be kept outside the schedules. This is unsatisfactory if the intention is that the administrative provisions operate in substantially the same situation that brings the beneficial provisions into operation — namely, the other testator

surviving (or not surviving) the testator. In other words, it is impossible to word a testamentary 30-day survivorship provision in such a way that both of the following are satisfied: administrative provisions operate on the testator’s death, and beneficial gifts operate only if the beneficiary survives the testator by 30 days; and administrative provisions and beneficial provisions can remain together in their appropriate schedules. A collateral benefit of using Form 9.01 is that there is no need to guard against the danger of a double gift if a pecuniary legacy is given in the wills of both testators: see [19.2]. The danger of the double gift can only arise when there is a 30-day survivorship requirement. There is no danger of a double gift if Form 19.01 is used, because the form excludes the 30-day survivorship requirement.

Will of other testator 9.8 Even if schedules are appropriate for the will of the testator (the ‘first testator’), there is no logical necessity for schedules to be used in the will of the testator’s spouse or partner (the ‘second testator’). If the circumstances of the second testator are uncomplicated — for instance, if the second testator has no children from a previous relationship — then an ordinary will without schedules, perhaps giving the whole estate or the bulk of it to the first testator, is probably appropriate. The model wills in Appendix B [B.04], [B.05] and [B.06] illustrate the point. [page 149] If Form 9.01 is used in the will of the first testator, the will of the second testator must contain either Form 9.01 or Form 6.03 — that is, the 30-day survivorship requirement must be excluded from the second testator’s will also. The reason is that if the will of

the first testator contains the exclusion and the will of the second does not, and the two testators die within 30 days of each other, the wills might operate in an unintended way, particularly in relation to the unintended double gift where both wills contain a pecuniary legacy: see [9.7], [19.2].

Wording and effect of gift to spouse or partner 9.9 A gift to ‘my husband’ or ‘my wife’ in a will means the husband or wife at the time of making the will: Re Coley [1903] 2 Ch 102; Re Devling [1955] VLR 238. The words ‘during widowhood’ or ‘as long as she remains my widow’ require that the wife be married to the testator at the beginning of her interest; the terms also indicate when her interest is to end: Re Boddington (1884) 25 Ch D 685.

Protecting children where large gift, or gift of whole estate, to spouse or partner 9.10 It sometimes happens that a husband or wife or partner who has children of the marriage or partnership but no other children is afraid that the surviving spouse or partner will inherit the estate from the first dying, and later remarry or get a new partner. The fear is that the survivor will inherit and later leave her or his estate to the new spouse or partner, leaving the testator’s children high and dry (even though those children are also children of the testator’s spouse or partner). The testator is therefore unwilling to leave the bulk of the estate, or the whole estate, to the surviving spouse or partner. The problem is analogous to the problem of drafting a will for a testator in a blended family, which is discussed in [9.11]. A flexible life estate might be useful. Forms 26.01 and 26.02 offer life estate precedents which are more flexible and considerate towards the life tenant than the traditional forms of life estate. See further [9.17], where a possible procedure is set out, and Chapter 26. The testator will have to consider family provision: see Chapter 14. Another

alternative, which also has other benefits, is the testamentary discretionary family trust: see [9.18] and Form 25.01, which is a precedent for such a trust.

Blended (melded) family 9.11 In this context a blended family is a family in which the testator presently has a spouse or partner, and also has children from another relationship. If a testator who was previously in a marriage or partnership and has children of that marriage or partnership enters a new marriage or partnership, the drafting of that testator’s will may be delicate. (Appendix B contains a model will (‘Will of a partner in a de facto relationship’ [B.05]) which may be useful. The structure of the will in [B.05] may be used for a second marriage, and, indeed, in any situation where a testator who has children from one relationship is now in another relationship.) [page 150] Blended families are sometimes complex; for example, there may be more than one former partner, and there may be children of more than one former partner. Where the relationships are complex, the will draftsperson must understand the family structure exactly, and to this end should consider preparing a family tree.

Blended family: giving whole estate to surviving spouse or partner 9.12 If the testator leaves the whole estate or the bulk of the estate to the present partner, leaving little or nothing to the testator’s children from the earlier relationship, they rely on the moral obligation of the present spouse or partner to provide for

the testator’s children on the survivor’s death. The surviving present partner may remarry and have further children. At best, the benefit to the testator’s children from the previous relationship will be delayed for the time the spouse or partner survives the testator — which may be a very long time. Indeed, the surviving spouse or partner may forget her or his moral obligation to the children of the testator from the prior relationship, and leave the property he or she inherited from the testator to a subsequent spouse, or partner, or to subsequent children, to the detriment of the testator’s children. These are not unusual circumstances, and the testator should not always assume that the survivor will benefit the children, particular when the testator’s partner is not a parent of the testator’s children. The testator’s children from the prior relationship will be in the difficult position of having to decide whether to claim family provision from the estate of their parent (the testator) on the testator’s death. If the testator’s children are young, there may be no one who is prepared to act decisively and within the prescribed time limit to apply for family provision on their behalf. In any case, whatever the age of the testator’s children, a claim for family provision by the children against the estate of the testator will permanently sour the children’s relationships with the surviving spouse or partner who is inheriting from the testator. The children of the testator’s prior relationship face even more serious difficulties if they wait for the death of the surviving partner and then claim family provision from the survivor’s estate. The wait is likely to prove fruitless; it is probable that the children will not be eligible to claim family provision under the statute of the jurisdiction concerned. If the testator was married to the surviving present partner, the partner may be the stepparent of the testator’s children of the prior relationship; if the partners were not married, the surviving present partner and the children are not related to each other at all. The eligibility of stepchildren is discussed in Chapter 14. Even if the children are eligible to claim family provision from the estate of the surviving spouse or partner

on that person’s death, the estate may have been dissipated by the time the person dies, or the person may have formed a new relationship, with its own children, and the testator’s children will have to compete with the strong claims of the new family of the surviving spouse or partner. [page 151]

Blended family: purposes testator will want to achieve 9.13 The testator wishes to be confident that her or his children from the previous relationship are protected, yet does not want to show distrust in the new partner. The testator is likely to want to give a substantial benefit to the present partner, and at the same time make sure that the children of the previous relationship also receive a benefit. The testator may also wish to ensure that her or his children do not have to wait until the death of the present partner before receiving a benefit.

Blended family: alternatives open to testator; take life insurance and superannuation into account 9.14 In drafting for a testator in a blended family, there are a number of possible ways to protect children of a partner by a previous relationship. It is re-emphasised that the will draftsperson must consider the estate as a whole, including superannuation and life insurance assets. Superannuation may well be the largest asset in the estate, and the destination of superannuation benefits on the death of the member of the fund must be taken into account. The same applies to life insurance. Some of the following possibilities may be combined.

Blended family: alternatives: leave whole estate to surviving partner 9.15 The testator could simply leave the whole estate to the surviving partner, who will be the stepparent of the testator’s children if the testator and the present partner were married. As mentioned above, this is generally an unsatisfactory solution.

Blended family: alternatives: create mutual wills 9.16 The testator could create a mutual will with her or his spouse or partner. This is generally an unsatisfactory solution, for the reasons given in Chapter 33.

Blended family: alternatives: create life estate 9.17 The testator could give a life estate in some major asset, such as the family home, to the surviving present partner: see [26.1]. If in doing this the will gives the residue to persons other than the surviving partner, the personal effects must be given outright to the surviving present partner. Otherwise, there is likely to be an unseemly struggle between the surviving present partner and the children of the testator over the ownership of particular items in the personal effects: see [20.13], [26.11]. A disadvantage of giving a life estate is that unless proper and generous funds are provided there may be insufficient income or capital to maintain the house and it will descend into disrepair. The life tenant will suffer increasing financial hardship as time goes by (the situation is called the ‘dry life estate’). In particular, it is generally unsatisfactory for the life estate to be limited ‘during widowhood’: see White v Barron (1980) 144 CLR 431. A similar difficulty arises in relation to rights of occupation. [page 152]

A major disadvantage of life estates used to be their inflexibility. The traditional forms of life estate made it difficult or impossible to sell or let the house if the life tenant wished, or was forced by age or other circumstances, to move. Forms 26.01 and 26.02 are life estate precedents which are more flexible and kindly than, and therefore preferable to, the traditional forms of life estate. A life estate based on Form 26.01 or Form 26.02 would be appropriate for a testator providing for a blended family. The testator could, for example, give the surviving spouse or partner a life estate in a home and in addition set aside a fund sufficient for the survivor’s maintenance, to pay the rates, taxes and outgoings, and to keep the home in good repair. A superannuation death benefit might be earmarked for this purpose. The remainder interest would probably be given to the children (or further issue) of the testator. The testator would provide written reasons for the gifts made in the will, in a separate document, as these reasons will be relevant to family provision claims: see further Chapter 14. As some members of the family are likely to be disappointed by the testator’s testamentary arrangements, the testator should consider discussing her or his testamentary intentions with the family: see further [14.3]. The people affected might signify their consent to the arrangements, being careful not to give the appearance that the arrangements are contractual. The testator would not intend to be bound to the arrangement by contract or a mutual wills agreement (see Chapter 33); and the consents of the others involved would in any case not be binding in a family provision application: Liebermann v Morris (1944) 69 CLR 69; Singer v Berghouse (1994) 181 CLR 201; Kozak v Matthews [2007] QSC 203; BC200706219 (cf Succession Act 2006 (NSW) s 95, which empowers the court to approve a release of rights to claim family provision). However, the consents would be admissible as part of the surrounding circumstances, to show what the parties had in mind. The use of life estates used to be problematic because of the taxation treatment of capital gains on testamentary trusts where

there were separate income and capital beneficiaries — including the case of the life tenant and beneficiaries in remainder. This has now been corrected by s 115-230 of the Income Tax Assessment Act 1997 (Cth): see [15.22].

Blended family: alternatives: create testamentary discretionary family trust 9.18 The testator could create a testamentary discretionary family trust, with a wide range of potential beneficiaries including the surviving present partner and the children (and grandchildren) of the testator. The trustee would be empowered in her or his discretion to allocate income and capital to members of the class of beneficiaries from time to time according to need or the intentions of the testator as far as they are known. This trust is attractive where there is likely to be substantial capital gains tax to be paid in due course, as the trust will allow the trustee to manage the payment of income, the disposal of assets and the allocation of the proceeds of disposal [page 153] to particular beneficiaries to minimise the tax payable. The discretionary trust gives good protection for children of the testator from a previous relationship. It may also provide some asset protection against insolvency or family breakdown, and against dissipation by irresponsible descendants. Additionally, it can provide a useful property management structure for future generations. A precedent for such a trust is offered in Form 25.01. The testamentary trust has advantages over the inter vivos trust. The income tax threshold in respect of minor beneficiaries is more generous for testamentary trusts than it is for inter vivos trusts, and to the extent that interests move by will rather than inter vivos, there are capital gains tax advantages. The possibility

remains, however, that the benign taxation regime for family trusts may come to an end in response to political pressure. See generally Chapters 15 and 25.

Blended family: alternatives: create inter vivos discretionary family trust 9.19 The testator could create an inter vivos discretionary trust, with the surviving present partner and the children (and grandchildren) of the testator among the beneficiaries. The testator during life, and in her or his will, can from time to time add assets to the trust. The trustee will be empowered to allocate income and capital to members of the class of beneficiaries from time to time according to need or the intentions of the testator as far as they are known. It is suggested that a testamentary trust is to be preferred to an inter vivos trust, partly because the threshold for income tax for minor beneficiaries is lower for inter vivos trusts than it is for testamentary trusts (that is, more tax will have to be paid in respect of distributions of income to each minor). See also Chapter 25.

Blended family: alternatives: give major asset, for example, matrimonial home, to surviving present partner 9.20 The testator could give a major asset, such as the house, to the surviving present partner outright. In this case the personal effects (as to the meaning of personal effects, see [20.13]) must be given outright to the surviving present partner (see [26.11]), otherwise there is likely to be a struggle between the surviving present partner and the children of the testator over the ownership of the particular items in the personal effects. The testator could then give some of the other assets to the other potential beneficiaries. Where the testator’s spouse is dependent

on him or her, the testator must also consider: what is the surviving spouse or partner going to live on?

Blended family: alternatives: usual best solution is fair outright division on death of testator 9.21 Often the best solution is to divide the estate in proportions between, on the one hand, the surviving present partner, and, on the other hand, the children of the testator from the previous relationship. The division will be one [page 154] which appears to the testator to be fair given the size of the estate, the duration of the present relationship; the ages of the parties; the amount of superannuation available and how it will be allocated; the nominations in and the ownership and size of any life insurance policy; and whether there are children of the present relationship. The fair outright division on the testator’s death is the solution of choice if the testator has decided not to leave a life estate or testamentary trust. Simply leaving the whole estate to the surviving spouse or partner is not a ‘solution’ which should be contemplated unless there are strong specific reasons in the particular case. The bequests to the present partner would be absolute and would operate immediately on the death of the testator (subject to the usual 30-day survivorship provision). If the children of the prior relationship are adult, the gifts to them under the will would be unconditional and immediate. If the children are minors, the gifts to them would be held (in the usual way) on trust for those of them who survive the testator and reach their respective majorities (in accordance with Form 27.04 and other forms in Chapter 27).

Often the testator will be able to come to a comfortable position of, for example, giving one-third of her or his estate to the surviving present partner, and two-thirds of the estate to her or his children of the previous relationship. This approach offers major advantages: The surviving present partner can take her or his benefit under the will and — knowing that the testator’s children from the previous relationship have been provided for — proceed to enjoy the benefit he or she has been given and dispose of it as he or she wishes. The surviving partner is freed from feeling any moral obligation to provide for the testator’s children from the previous relationship, who are likely to become more and more irrelevant to the surviving present partner’s life from the time of the testator’s death onwards. The testator’s children from the previous relationship take their benefit on the death of the testator (subject to the property being held on trust for them during minority), and do not have to wait for it until the death of the surviving present partner. It is not usually necessary to deal specifically with the testator’s house, although it will still usually be necessary to give the testator’s personal effects to the present partner: see [26.11]. The beneficiaries are not subject to the costs, uncertainties and frustrations of trusts or life estates. Taking superannuation into account in making the division in the will may be difficult, as taxation considerations and the decision of the trustee of the superannuation fund may mean that the superannuation benefit has to pass to the surviving partner. As superannuation may be substantial, the bulk — or the whole — of the estate may have to be given to the children of the prior relationship in order to achieve a fair overall division. Expert advice may be required. [page 155]

Outright gifts are usually to be preferred to long-term provisions such as trusts or life estates, especially where the estate is of modest size. Trusts and life estates become more attractive as the estate becomes larger. However, the testamentary discretionary family trust, because of its flexibility, is an alternative to outright division of the estate: see Chapter 25 and Form 25.01. Where the income of the testator and her or his present partner is provided by a business, it may be important to protect the livelihood of the survivor by making it possible and practical for the survivor to continue the business after the death of the testator. Family provision questions may arise with outright division of the estate: see Chapter 14.

Blended family: aids to solving problem: increase available assets using superannuation 9.22 Government policies have made superannuation an increasingly attractive and tax-efficient investment option. This may help the testator to increase superannuation assets sufficiently to enable her or him to provide adequately for the surviving spouse or partner and the children of the testator’s previous relationship — and children of the present relationship also. It is necessary to ensure that the proceeds of superannuation do in fact go to the appropriate dependants. If the proceeds of superannuation pass to a beneficiary who is not a dependant, there are serious taxation consequences. An estate plan which relies on superannuation as an element must be reviewed regularly. Child dependants become adults, and cease to be dependants. If the testator takes a lump sum, or retires, the entire plan could be distorted or completely unbalanced. Superannuation is discussed in Chapter 17.

Blended family: aids to solving the problem: increase the available assets using life insurance 9.23 While the generous tax treatment of superannuation makes it a very attractive option for building up assets, life insurance provides a flexible way for the testator to provide funds for her or his children from a previous relationship. If the testator enters a new relationship, or a relationship breaks down, the testator can be left with inadequate assets to protect these children. The testator should ensure that proceeds of the policy do in fact benefit the children at risk, either by giving the ownership of the policy to the children (or placing it in trust for them), or by nominating the children as beneficiaries of the proceeds. A nomination in a life policy overrides any provision in a will: see [17.2]. Also, the proceeds of life policies are protected against creditors if the testator dies insolvent: see [17.3]. Term life policies offer a comparatively inexpensive way to provide protection for a limited period; for example, while a mortgage is being paid off or while children are being educated. [page 156]

Blended family: family provision claims by past members of family whom testator does not wish to benefit 9.24 The testator in a blended family very often leaves persons who are related to her or him whom he or she does not wish to benefit. Such relations include a former spouse or partner, or estranged children of a previous relationship. Under family provision legislation the entitlement of a former spouse or partner

to claim family provision often extends indefinitely — beyond separation or divorce, and beyond the creation of a new relationship or marriage. The will draftsperson must be aware of the extent of the rights of such persons to claim and must take the possibility of such claims into account in advising the client: see further Chapter 14. In particular, some principles which are relevant to a testator who may be inclined to give to a surviving partner less than he or she should in all the circumstances receive are set out in [14.4].

Appointments of executors and guardians are placed in schedules 9.25 Appointments of executors and guardians for the case where the spouse or partner survives the testator go into the first schedule; appointments of executors and guardians for the case where the spouse or partner does not survive the testator go into the second schedule. See further [9.5].

Wills of partners who may later marry 9.26 Since it is quite common for unmarried partners to marry each other, even if they have no such intention at the time the wills are made, the wills should, if the testators so desire, contain Form 8.02, which saves the wills from revocation by the parties’ later marriage. See [9.11]ff in relation to drafting for a testator who is a member of a blended family. If Form 9.01 is used, see [9.5] for the placement of a contemplation of marriage provision such as Form 8.02.

FORMS

FORM 9.01 Schedules for spouse or partner 1. If [my wife (or) my husband (or) (name)] survives me, Schedule 1 applies. 2. If [my wife (or) my husband (or) (name)] does not survive me, Schedule 2 applies. 3. Schedule 3 applies in any event. 4. No beneficiary is required to survive me by any period specified by statutory provision (whether 30 days or any other period) in order to take a benefit under my will, and this statement expresses a contrary intention for the purposes of statutory provisions which impose a general requirement that beneficiaries survive me for 30 days or any other period to inherit. [The schedules will take the following form.] [page 157]

Schedule 1 [Here insert appointment of executors to come into effect where the spouse or partner survives the testator.] [Here insert guardianship provisions to come into effect where the spouse or partner survives the testator.] My executors hold my estate on trust: [Here insert the gift provisions to come into effect if the spouse or partner survives the testator.] (a) to … (b) to … [etc to the end of the gift provisions]

End of Schedule 1 Schedule 2 [Here insert appointment of executors to come into effect where the spouse or partner does not survive the testator.] [Here insert guardianship provisions to come into effect where the spouse or partner does not survive the testator.] My executors hold my estate on trust: [Here insert the gift provisions to come into effect if the spouse or partner does not survive the testator.] (a) to … (b) to … [etc to the end of the gift provisions]

End of Schedule 2 Schedule 3

My executors may in their discretion: (a) exercise any powers given to them by law; (b) exercise the powers of a trustee for sale … [etc to the end of the executors’ powers provisions (using Form 29.01)]

End of Schedule 3 [This the last provision of the will; here follows Date …; and the Attestation clause.]

[page 159]

Chapter 10 APPOINTMENT OF EXECUTORS Introductory Notes Choice of suitable executors and trustees; appointment 10.1 The testator should consider the choice of executor carefully. The testator should be comfortable that the nominated executor will seek a grant of probate, bring in the assets, pay the debts, attend to any other matter which requires attention (such as litigation) and distribute the estate in accordance with the will. It is common to appoint a beneficiary or beneficiaries as executor as they will have the greatest interest in administering the estate. Where the testator’s family circumstances are uncomplicated, or where the spouse or an adult child is the sole beneficiary, the beneficiary should be named as executor unless there is a good reason to do otherwise. The residuary beneficiaries are motivated to complete the administration, and it is always open to them to seek professional help. A substitute executor should always be named. It may not be appropriate to appoint the surviving spouse or partner as executor where he or she does not take the largest interest, or where the spouse or partner is likely to come into conflict with other major beneficiaries. In a blended family situation, a testator may consider appointing multiple executors, the spouse or an adult child of the current relationship, and an adult child of the previous

relationship, so that they can moderate and oversee each other’s actions. Such a course would only be appropriate where the testator is confident that the nominated executors are capable of working together. A non-beneficiary executor, such as a family member or friend, may be willing to act as executor on a gratuitous basis if the proposed executor is a trusted friend considered capable and interested in doing so. The proposed executor should be consulted and the executorial duties explained to them before the will is made (or immediately after if the will is made on an urgent basis — see [2.2]). These appointments should be the exception rather than the rule. Where there is no obvious executor, or the estate is significant and there is a range of beneficiaries, or where the beneficiaries are minors or charities, the testator could consider the relevant Public Trustee, a trustee company, or a professional trustee. In that instance the testator should be advised as to the fees and charges of the Public Trustee or trustee company, and of the right of the professional executor to payment for services, whether by charging clause or on an application for commission. [page 160] It is essential that the issue of the fees of a professional executor be grappled with at the time of the making of the will. If there is no charging clause, the professional executor may not be willing to take up appointment as executor, or the executor may take the grant and administer the estate but then be forced to apply for commission, which can result in lengthy delays before the estate is distributed. See Chapter 11 on payment of executors. If no executor is appointed (or if the appointed executor is unable or unwilling to act) the court will as a rule appoint as administrator the person with the greatest interest in the estate. This is usually the beneficiary of the residue or, if there is more than one

beneficiary of the residue, the one that represents the majority of interests: see Crane v Rebello (1852) 19 LT (OS) 192; Halsbury’s Laws of Australia, LexisNexis Butterworths Online, [395-3075], accessed 11 July 2016; compare Estate of Slattery (1909) 9 SR (NSW) 577; Bourdales v Carroll; Estate Holbrook [2007] NSWSC 1057; BC200708062; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, LBC Information Services, Sydney, 1996, notes to [74]ff; [75]ff. Generally, the persons appointed as executors will also be the trustees in relation to property to be held on trust; however, it is not uncommon to appoint particular persons to be executors and other persons to be trustees. In what follows, ‘executors’ describes both executors and trustees unless the context indicates otherwise.

Appointment of sole executor 10.2 A sole executor should always be preferred where the testator’s family circumstances and his or her estate and testamentary wishes are simple and straightforward. Appointing multiple executors requires both executors and the estate solicitor to spend additional time and resources in consulting with each other and in completing the formalities of obtaining probate and administering the estate. It is unwise to appoint a sole executor (not being an institutional executor) without also appointing a substitute or ‘alternate’ executor to take the place of the sole executor if necessary. The appointed executor may be unwell or for some other reason unable to take up the appointment and do the work; or the executor may start on the work (before or after grant), and then die or be unable to finish the executorial tasks. The alternatives are to appoint two or more executors jointly, or to appoint a sole executor and a substitute. Form 10.01 provides for joint executors and trustees; Forms 10.02A and 10.02B provide for a single executor and trustee and a substitute or substitutes.

Appointment of joint executors 10.3 If a beneficiary is appointed as executor (as is suggested) but substantial gifts are made to unrelated parties or children from a prior relationship, the testator may wish to consider appointing a second executor. The costs and benefits of appointing multiple executors should be carefully considered. Joint executors and trustees can moderate and oversee each other’s actions but appointing multiple [page 161] executors simply to allow family members to feel included in the process should be avoided. On the other hand, substitute executors should always be named. Joint executors should be considered where the estate is to be held in trust, as is the case where there are minor beneficiaries or there is a life interest, and where the testator is in a blended family situation. If the testator is considering whether to appoint a child from a previous relationship in addition to the testator’s current spouse or partner, the testator should consider whether the child and the current spouse or partner are capable of working together to administer the estate. Where the will requires the exercise of a discretion, the actions of a sole executor may be, or appear to be, arbitrary or unfair. Tasmania has a special provision to deal with this problem: s 14(2) of the Administration and Probate Act 1935 (Tas). It reads: If there is only one personal representative, not being a trust corporation, then during the minority of the beneficiary or the subsistence of a life interest, and until the estate is fully administered, the court may, on the application of any person interested or of the guardian, committee, or receiver of any such person, appoint, in accordance with the probate rules, one or more personal representatives in addition to the original personal representative.

The appointment of an executor whose interests may clash with those of major beneficiaries of the estate should be avoided. For

example, a testator should hesitate to appoint as executor a business partner or a business rival: Vasiljev v Public Trustee [1974] 2 NSWLR 497; and see Ramage v Waclaw (1988) 12 NSWLR 84. The client may decide to appoint an executor regardless of the potential conflict between the executor’s personal interests and the executorial duties. It is not grounds for removal of executor that there is such a potential for conflict. A testator is assumed to know the facts that give rise to the potential conflict at the time of the making of the will. By appointing the executor against the background of the relevant facts, the testator is regarded as having created the possibility of conflict: Hordern v Hordern [1910] AC 465 at 475; Witham v Witham [2000] WASC 236; BC200005742 at [128]; Rutter v McCusker [2008] NSWSC 1289; BC200810791 at [24]. The executor will be at risk of removal, however, where the court determines that he or she has acted in his or her own interests in preference to the interests of the beneficiaries of the deceased’s estate, if the administration of the deceased’s estate has been placed in jeopardy. A beneficiary who is being given a gift subject to a condition should not be appointed to act by herself or himself as executor. A person who is going to be a guardian or carer for minor beneficiaries should not be appointed to act by herself or himself as executor. Where joint guardians are appointed, one of them may be appointed executor, but consideration should also be given to appointing a second, independent executor — again, impartiality and continuity are needed. Where a beneficiary is subject to a disability, the testator may wish to appoint a sibling of the beneficiary to be executor and trustee for the beneficiary. This may be a satisfactory appointment, but if the sibling is also a beneficiary there is [page 162]

the danger that the sibling’s interest in the inheritance may be an incentive to be less than generous to the beneficiary with a disability. It follows that the testator should also consider appointing an independent person to act as co-trustee with the sibling trustee. In the previous edition of this text it was suggested that neither a life tenant nor a beneficiary in remainder should be chosen as executor, for their interests are likely to clash. In particular, a farmer or business person who gives a life tenancy to a surviving spouse and the remainder to her or his children should not appoint as an executor a son or daughter who will, for example, manage the property and at some time after the testator’s death be presented with an opportunity to purchase it. As an executor, the son or daughter will not be able to purchase the property without either an express provision in the will, the consent of all the beneficiaries (all of whom must be sui juris) or the court: see Estate of Cummings [1964] SASR 236; HAJ Ford and WA Lee, The Law of Trusts, Westlaw AU, [9.19030]ff, accessed 15 July 2016. The authors of this edition are more circumspect — if the life tenant is the spouse and the remaindermen are the children (as is often the case), there may not be another appropriate person to nominate as an executor other than a professional executor and, unless the estate is very large, appointing a professional executor over a long period of time will give rise to disproportionate fees being charged to the estate. For commentary on choice of executor where there is a testamentary trust, see C Rowland and P Bailey, Discretionary Testamentary Trusts: Precedents and Commentary, LexisNexis Butterworths Australia, 2013, [1.14]ff.

Numerous executors and trustees 10.4 There is no limit to the number of executors who may be appointed in a will, and in the Australian Capital Territory, New South Wales, the Northern Territory and South Australia probate

may be granted to any number of executors at any one time.1 In Queensland, Tasmania, Victoria and Western Australia, although any number of executors may be appointed by the will, the court will not grant probate to more than four executors at any one time.2 Where the residuary beneficiaries are numerous — for instance, where the residuary beneficiaries are the testator’s children — it is not desirable to appoint all (as opposed to some only) of them as executors as this will cause inconvenience, delay and disagreement. Appointing all the residuary beneficiaries (particularly if they are to share equally) avoids feelings of resentment and charges of favouritism. [page 163] Certainly, not all the executors need prove the will: one or two can do so, while the rest renounce or reserve the right to prove later. Reserving the right to prove gives those who do so a sense that they can gain some control if they need to. All in all, two executors acting at any one time is generally the most convenient number. If it is decided to appoint only two of a number of residuary beneficiaries, the testator should try to choose those who are near the forum for administration and are persons that the other beneficiaries will trust and respect. If the testator decides to appoint a larger number, the testator may choose to express the wish that only two of the executors prove the will at any one time. Form 10.04 is appropriate. It is based in part on Oerton in [1967] Law Society’s Gaz (UK), 244–5 and 343–6, quoted in [10.14]. Alternatively, the testator may consider providing for the resolution of disputes: Form 10.03 is appropriate. Where two or more executors are to be appointed to act

together, they are normally appointed to act as joint executors and trustees. Form 10.01 or Form 10.03 is appropriate in either case. Where the testator wishes to appoint all the members of a class to be executors, the testator can simply appoint, for example, ‘my children’. However, the testator or will draftsperson may prefer to identify the executors by name and address.

Same or different persons for executors and trustees? 10.5 Although it is usual to appoint the same persons as executors and trustees (see [2.55]), this is not a universal rule. The functions of executors are distinct from the functions of trustees. Briefly, the duty of executors is to complete the administration of the estate so that the creditors can be paid and the remaining assets handed over to beneficiaries or, if appropriate, to trustees, as soon as reasonably possible. The duty of trustees is to take control of the trust assets and administer them for the benefit of the beneficiaries or objects of the trust in accordance with the purposes of the trust as defined in the trust instrument. The purposes of the trust may be, and often are, long term; there is no underlying idea (as there is with executorships) that the trust must be administered speedily. Thus, for instance, a will may provide that portion A of the estate is to be paid directly to beneficiaries who are of full age, and that portion B of the estate is to be held on trust for minor beneficiaries. The person appropriate for the task of executor, which will be to administer the estate, pays portion A to the beneficiaries and pays or appropriates portion B to the trustees of portion B. The executor may well be the same person who will be trustee of the trusts for the minor beneficiaries. If so, the executor will pay portion B into a trust account and become trustee in relation to the asset. However, the testator may decide that the person appropriate for the executorship is not appropriate for the long-term task of managing the trust fund for the minor beneficiaries. The testator will then

appoint one person as executor, and a different person as trustee. Some situations in which persons appointed executors would usually be different from the persons appointed trustees are mentioned below: [page 164] 1.

where the duties imposed by the will are onerous or extend over a long period or involve management of property or investment. Examples would be provisions requiring trustees to carry on the testator’s business or to manage funds for a beneficiary with a long-term disability; 2. in certain circumstances where guardianship of minor children is involved: see [7.19]; 3. where a testamentary discretionary family trust like that in Form 25.01 gives certain functions to executors and other functions to trustees. If it is contemplated that the separate trustees may be strangers and not beneficiaries under the will, a provision for their remuneration (by legacy, annuity or otherwise) should be inserted in order that there may be no difficulty in filling any vacancy that may occur. Where an executor would be interested in the result of the exercise of a discretion, it is advisable, and indeed usual, to insert a clause allowing her or him to leave the exercise solely to a disinterested executor, and to concur in that exercise merely as a formal party. Form 10.08 is appropriate.

Choice of executors and trustees: trusts, life estates, minor beneficiaries, large estates; long-term administration 10.6

The position of the life tenant of an estate consisting of

fixed interest investments may not be pleasant. However, it may be preferable to that of the life tenant of, or minor beneficiary entitled to share in, an estate invested in shares or debentures of companies which have been involved in the more spectacular financial crashes of the last few decades. Unless the testator is able to appoint executors of financial knowledge and discretion, the expansion of investment powers creates a risk. Where a life interest, trust or conditional gift is created, or where minor beneficiaries have to be cared for, a disinterested, impartial trustee should be considered. The choice can be very difficult, particularly if the testator has decided against appointing an institutional trustee: see also [10.1], [10.09]. Where a continuing trust is created, the choice of trustees will depend particularly on the type and purpose of the trust, the length of time for which it is to endure, and the complexity and nature of the portfolio of assets. The appointment of an institutional trustee with appropriate experience and expertise — the Public Trustee (in Victoria, the State Trustees) or a trustee company — may be a solution. The Public Trustee and trustee companies have experience and expertise, and will often be a better choice than an individual trustee or, worse still, an inexperienced lay trustee. Consult with the Public Trustee or trustee company about their fees and investment and other policies before making the appointment in the will and, with the consent of the testator, discuss the will as drafted with the institutional executor. There is something to be said for giving beneficiaries a ‘power of appointment’ (that is, a power to appoint and remove the trustee): see Powers of the primary [page 165] beneficiary in Schedule 3 of Form 25.01 (the testamentary

discretionary family trust precedent). If a power of this kind is not given, the testator’s appointment is for most practical purposes irrevocable because of the expense and difficulty of removing a trustee. See generally RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, [40D.13]ff; Miller v Cameron (1936) 54 CLR 572; Porteous v Rinehart (1998) 19 WAR 495 at 518 per White J: ‘It is rare for a court to remove an executor or trustee, save in exceptional circumstances’; Pope v Pope [2001] SASC 26 (14 February 2001, Doyle CJ, Duggan and Bleby JJ). A trustee may retire and appoint a new trustee by registered deed,3 but this procedure depends on the consent of the retiring trustee and the retiring trustee will usually require all beneficiaries to enter into a deed of indemnity and release as a condition of retirement. It may be that courts have become more ready to remove an executor now than in the past; still, the test is not an easy one to pass. In Sikorski v Michalowski [2008] NSWSC 404; BC200803197, Gzell J (Equity Division) said (at [18]): In Mavrideros v Mack (Supreme Court of New South Wales, Young J, 16 June 1997, unreported) the judge at first instance adopted the approach that the inherent jurisdiction should not be exercised unless one was getting close to the position of the grant being useless. The Court of Appeal in Mavrideros v Mack (1998) 45 NSWLR 80 stated this to be too narrow an approach.

Sheller JA, with whom the other members of the Court of Appeal agreed, said (at 108): His Honour applied a far too rigid test by saying that one had to get close to the position of the grant being useless.

Gzell J (at [18]) stated the question to be asked (quoting from Sheller JA (at 108) in Mavrideros v Mack): The question was … whether the due and proper administration of an estate had either been put in jeopardy or had been prevented either by reasons of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which established that the executor was not a fit and proper person to carry out the duties he had sworn to perform.

Gzell J applied this test to the facts before him (at [19]): In my view, the circumstances of this case establish that the defendants are not fit and proper persons to continue to conduct the administration of the estate. Having been advised of a court order that a legacy of $100,000 was payable to the plaintiff, the defendants have ignored the demands for that payment. In those circumstances it seems to me to be appropriate to order that the probate be revoked.

[page 166] In Pajic v Lepan [2006] NSWSC 1123; BC200608505, Young CJ in Eq had himself applied the Court of Appeal decision in Mavrideros v Mack, holding that he had power to revoke a grant where the executor had ‘been guilty of inexcusable delay and inefficiency so that the Court can see that the executor is impeding the due administration of the estate’: at [6]. There are many cases on removal of an executor or administrator. They include: Weirv Matthews [2001] NSWSC 824; BC200105637; Wendt v Orr [2004] WASC 28; BC200400808 at [250]; Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269; BC200405523; Re Greif; Kantor v Wilding [2005] VSC 266; BC200505376; Greenland v Baldwin [2006] QCA 293; BC200606166 (a solicitor trustee); Upton v Downie [2007] NSWSC 1095; BC200708470; Schaverein v Jones [2007] NSWSC 1429; Elovalis v Elovalis [2008] WASCA 141; BC200805317; Rutter v McCusker [2008] NSWSC 1289; BC200810791; Di Domizio v Matalone [2012] NSWSC 296; BC201203373; Conners v Conners, Estate of Conners [2012] NSWSC 181; BC201201278. If the appointment turns out to be expensive, frustrating or burdensome, or the trustee is merely difficult to work with or obstructive, the beneficiaries will probably have to learn to live with it. Therefore, the quality of the initial appointment is crucial. Giving to the beneficiary or beneficiaries a power of appointment is a strong and valuable protection, but it is not always available or appropriate. For a clause giving a power to appoint and remove

trustees, see Powers of the primary beneficiary in Schedule 3 of Form 25.01. Where the main beneficiaries (the beneficiaries of the residue) are adults and are entitled absolutely — where, that is, the will imposes no conditions or long-term obligations which affect the residuary beneficiaries — the principle is still to appoint as executors the main beneficiaries, for they are motivated to complete the administration, and are always free to obtain expert professional help. On choice of executors and trustees, see further [2.55] (generally); [25.18] (testamentary trusts); and [29.18] (where a business is given as a legacy).

Choice of executors where testamentary guardian 10.7 On the choice of executors where there is a testamentary guardian, see [7.19].

GST and choice of executors 10.8 Testators who are registered for GST purposes should ensure that competent executors are appointed. It is likely that urgent action will be required in paying outstanding GST liabilities and in cancelling the GST registration or registering the executors for GST purposes.

Public Trustees as executors and trustees 10.9 The Public Trustee for the Australian Capital Territory comments that effective trust administration is a complex area demanding specialist knowledge, vigilance, diligence, prudence, openness, independence, longevity, accessibility, expertise across several disciplines, compliance with regulations and accurate record

[page 167] keeping.4 The Public Trustee has expertise in the management of funds, protection of capital and the creation of wealth, and employs lawyers, accountants, financial planners, tax agents and experienced trust officers with appropriate tools and resources. The fees are not disproportionate, especially when tax savings and good asset management are taken into account. The Public Trustee’s primary concern is always to protect and further the interests of trust beneficiaries, especially the vulnerable. If the conduct of the administration of the estate will require the running of or sale of a business, the proposed executor should be consulted at the time of the making of the will. The Public Trustee may not be willing to take on administration of an estate if the conduct of the administration requires it to conduct or sell a business. In those circumstances (assuming the business is large enough and there are no suitable beneficiaries), a professional executor should be considered.

Will draftsperson appointing herself or himself executor 10.10 There are good reasons why it is unwise for a solicitor to seek appointment as executor of a will: see [10.14]. The present paragraph is, however, concerned with the narrower question: should a will draftsperson appoint herself or himself executor of the will he or she is drafting for a client? It seems clear that an executor is not, as such, a beneficiary (Re Medwin (1919) 15 Tas LR 75; Re Young [1923] VLR 6); nor is a trustee a beneficiary: Cresswell v Cresswell (1868) LR 6 Eq 69; Re Ray’s Will Trusts [1936] 1 Ch 520; Kelly v Walsh [1948] IR 388. In jurisdictions other than New South Wales, it follows that a person who drafts a will and appoints herself or himself executor or trustee of that will does not come within the suspicious

circumstances doctrine. (Under the doctrine of suspicious circumstances a person who claims a benefit from a will which he or she has drafted may be required to satisfy the court affirmatively that the deceased knew and approved the contents of the will: see [1.9].) On suspicious circumstances generally, see [1.9]ff; GL Certoma, The Law of Succession in New South Wales, 3rd ed, LBC Information Services, Sydney, 1997, pp 79–82, 278; RS Geddes, CJ Rowland and Paul Studdert, Wills, Probate and Administration Law in New South Wales, [5.16]; Halsbury’s Laws of Australia, LexisNexis Butterworths Online, [395-200], accessed 5 July 2016; IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New Zealand, 2nd ed, Law Book Co, Sydney, 1989, [304]; AA Preece, Lee’s Manual of Queensland Succession Law, 6th ed, Lawbook Co, Sydney, 2007, [3.090]. In New South Wales, Victoria, Australian Capital Territory, South Australia and Queensland the duties of a practitioner who drafts a will appointing herself or himself executor are governed by Rule 12 of the Legal Profession Uniform Law Solicitors Conduct Rules. Rule 12 is quoted in [11.14]. It places restrictions on a practitioner contemplating drafting a will giving herself or himself a substantial benefit: see Chapter 11. [page 168] It is submitted that there is a strong reason in principle why a will draftsperson should not appoint herself or himself executor. The will draftsperson’s duty is to draft a will which will express the intentions of the testator in simple, effective terms. The interest of the will draftsperson as executor may be to secure a will which will give flexibility, discretion and ease of administration which the testator does not wish to give. Thus, the testator may intend a

binding trust for the maintenance of animals, while the executor’s interest may be to retain a discretion so that the animals may later be destroyed for the benefit of beneficiaries of the estate: see [20.18]. Further, the will draftsperson’s duty may be to encourage the testator to prefer simple, direct gifts and immediate vesting to provisions which are going to require long-term administration, like life estates and trusts: see [26.1]. The interest of the will draftsperson as executor may be to draft a will which will maximise fees, perhaps by drafting long-term provisions such as trusts or life estates that the executor would administer for a profit. Again, the testator’s wish might be that estate assets, particularly realty, not be sold; the executor’s interest may be to sell estate assets and to invest the proceeds to the advantage of the executor — perhaps as part of the executor’s common fund. Any will draftsperson who insists on being named as executor is subject to these pressures, and their work should be viewed with appropriate caution. The position of a will draftsperson who inserts a charging clause in her or his own favour is complicated: see [11.7]–[11.14]. It is probably unwise for a person who is named as executor or married to a person named as executor to sign the will as a witness, although the appointment is not strictly speaking affected by the witness–beneficiary rule: Re Dunn [1919] NZLR 685; and see Re Barber (1886) 31 Ch D 665; Re Pooley (1888) 40 Ch D 1; IJ Hardingham, MA Neave and HAJ Ford, Wills and Intestacy in Australia and New Zealand, [903]; and in the present work, [11.15] and [31.29].

Minors as executors 10.11 A minor may be nominated in the will to be an executor and trustee. If the minor reaches full age before the testator dies, the nominee is entitled to a grant of probate in the ordinary way.

If the nominee is still a minor at the death of the testator, the nominee will not be entitled to a grant; the named executors who are of full age will be entitled to the grant and leave will be reserved to the minor to prove on reaching full age. If there is no nominee who takes a grant and a grant is needed, a grant of administration durante minore aetate (‘during minority’) may be sought. It is not good drafting to put the estate to this trouble. It is generally important not to appoint a natural person sole executor; it is particularly important not to appoint a minor sole executor. But where there are a number of children, some of whom have reached full age while some are minors, there is no objection to appointing as executors ‘all my children’, although it is generally advisable not to appoint more than two executors jointly: see [10.14]. Form 10.01 or Form 10.03 may be used. The testator or will draftsperson may consider it desirable to identify the children by name and address. [page 169] The expression ‘my executors’ is defined in all the forms appointing executors to include a sole executor. This avoids the need to alter later clauses in the will if a sole executor is appointed.

Shifting executorships — executor ‘for the time being’ 10.12 The testator can validly appoint as executor the person who is the holder of an office ‘at the time of my death’: Re Anketell (1888) 14 VLR 111; Re Bone (1895) 1 ALR 132; Will of Laffan (1933) 50 WN (NSW) 227. However, the testator must not appoint as executor the holder of an office ‘for the time being’, because the appointment creates ambiguity about the actual intention of the testator. The court may conclude that the testator intended that

the person holding the office at the death of the testator should be the executor, and make a grant to that person: Re Bone; Re Anketell (the person was appointed absolutely); Will of Laffan (the person was appointed without limiting the grant). Alternatively, the court may conclude that the testator was attempting to create a ‘shifting executorship’ (an executorship limited to the period during which the office holder holds the office, to be automatically replaced as executor by the new office holder when the new office holder takes office). A ‘shifting executorship’ is invalid, and the court will refuse to appoint the holder of the office at the death of the testator: Will of Were (1886) 12 VLR 271 (compare Re Khan [1947] QWN 26, in which the court appears to have given effect to a shifting executorship).

Appointing foreign executors 10.13 Within Australia, there are no tax advantages in appointing different legal personal representatives for separate law districts, as federal and state probate, death and succession duties have all been abolished. Nevertheless, testators may wish to appoint different personal representatives for separate law districts. Forms 10.06A and 10.06B can be adapted for this purpose. They are based on Mason and Handler: Succession Law and Practice New South Wales (Handler & Neal), looseleaf, LexisNexis Butterworths, Sydney, [11,233]. If the testator is preparing two separate wills — one for Australia and the rest of the world and one for a foreign country — and is using Forms 3.04A and 3.04B, Forms 10.06A and 10.06B should be used for appointing the executors. See [3.2] on preparing wills for testators with foreign property.

Appointing solicitor or firm of solicitors 10.14 Solicitors should not be eager to seek appointment as executors. There are a number of reasons for this.

1.

2.

You will probably require a comprehensive charging clause in the will. For a solicitor, this raises the difficulty of drawing a will in your own favour. In New South Wales this is professional misconduct, and in other jurisdictions it is most unwise: see [11.14]. The work is likely to be very time-consuming and financially unrewarding. For example, you may find yourself actively engaged in helping a bereaved [page 170]

3.

4.

elderly person cope with the everyday exigencies of ordinary life — registering the car, dealing with the plumber — and you may find it difficult to bill the beneficiary or life tenant for every call on your time. Unless the clause expressly provides in clear terms that you can charge the estate professional fees for non-professional work, you are not allowed to: see Chick v Grosfeld (No 3) [2012] NSWSC 1536; BC201209886. The executor is liable to get blamed for not administering the estate quickly: ‘You have taken months and months and it’s still not finished. It’s a simple estate! Are you making a good thing out of being executor?’ While you might have had a good relationship with the testator, as executor you deal with the beneficiaries, who are liable to feel that you imposed yourself on them for motives of greed — especially when they consider the charging clause. Dissatisfaction may lead to unjustified but nevertheless embarrassing and damaging formal or informal complaints and attempts to remove you from the executorship. You may become a parent figure to teenage children and you might be pressed for continual increases in allowances and distributions of capital.

5.

From the point of view of the beneficiaries, the appointment of a solicitor or accountant can prove very unsatisfactory. The beneficiaries will not have entered into a costs agreement with you and in most cases they will complain about fees, having had no control over them. The beneficiaries will (unless the will is appropriately worded) have no control over the speed of the administration and the decisions made in course of it, and it is difficult to remove an executor or trustee: see [10.6]. In Re Will of McClung [2006] VSC 209; BC200604264, Evans M said (at [34]–[36]): The occasion on which a solicitor receives instructions for the preparation of a will for a client by a solicitor can place the solicitor on the horns of a dilemma if the solicitor is asked to act as executor under the will. It is not a position which the solicitor should seek. It is reasonable for the solicitor to preface acceptance with a requirement that the will contain a charging clause in relation to any legal services performed for the estate. To request inclusion of a charging clause so wide as to enable the solicitor to charge for all executorial functions is not reasonable unless the solicitor ensures that the will provides that such charges may be made in lieu of any entitlement to commission and the full import of the clause is explained to the client. The solicitor is under a duty to inform the client seeking his services as executor that he would be entitled to make a claim for commission for doing so, as to the maximum rate of commission which could be charged and the possible burden such commission may impose both on the corpus and income of the estate. Given the very real potential for a conflict arising between the interests of the client and the interests of the solicitor on such an occasion, it would be preferable that solicitors declined to act as executors. At the very least, the

[page 171] solicitors’ code of conduct should provide very clear guidelines as to the proper course of conduct on such an occasion and require the provision of written advice in relation to the decision to appoint a solicitor as executor.

Similar views are often expressed by courts in determining the proper construction of charging clauses. They do not apply universally. The testator’s family circumstances must be carefully

considered. If the estate is large enough in certain circumstances professional executors are appropriate. Finally, it seems that it is not possible to draft a waterproof form for appointing a particular solicitor or firm of solicitors to be executor or to do the legal work of the estate. The reasons for this, including those given in In the Estate of Yearwood (1982) 30 SASR 169, are set out below: 1. the firm itself cannot act as executor; 2. appointing ‘the partners’ in the firm will be an appointment of the partners individually and not the partners for the time being; 3. it is very difficult to cover all the contingencies of dissolution of partnership (with separation of parts of the practice), amalgamation, purchase, change of name, change of address, death, retirement and change of partners; 4. a clause restricting the number of partners appointed can cause difficulties; and 5. appointing ‘the partners’ in a large firm creates practical difficulties. Four partners might apply for probate, and leave might be reserved to the remaining 90 partners, who would all be listed in the advertisement.5 In Yearwood the testator employed a clause based on a suggestion in an article by Oerton in The Law Society’s Gaz (UK) May 1967, 244–5 and July 1967, Pt II, 343–6. The clause proved incapable of dealing with the case where the appointed firm divided into two. The clause reads: I appoint the partners at the date of my death in the firm of _ of _ or the firm which at that date has succeeded to and carries on its practice to be the executors and trustees of this my will (and I express the wish that two and only two of them shall prove my will and act initially in its trusts).

This wording had been half-heartedly approved in Re Horgan [1971] P 50. No doubt it could be tinkered with to provide for the contingency that the firm might divide, but the testator may well

not be happy with such a clause. In any case, many other difficulties would remain. A quotation from the judgment of Legoe J in Yearwood (at 175– 6) is appropriate: As the form used was taken from Mr Oerton’s suggested clause in the article abovementioned I think it is appropriate to draw the attention of draftsmen, whoever they may be — the office boy at an attorney’s firm & c — to the dangers which can arise by using such a clause in circumstances such as have arisen in this case. It is not uncommon at the present time in South Australia,

[page 172] with a legal profession where the majority of practitioners are of a young age, to find firms, even large firms, of solicitors changing their composition at very frequent intervals, and indeed disintegrating into various smaller firms which usually do not succeed to the business of the previous firm. The warnings and doubts expressed by Oerton have shown up the pitfalls and dangers which may well arise by the use of such a precedent. Only partners who have established a security of tenure would appear to be the proper objects of such a clause. If in doubt the clause may be better left out of the will. Certainly such testamentary authors would be wise to keep a vigilant eye on the careers of such appointees.

Compare Will of Milton [1999] VSC 417; BC9907424. Perhaps a clean way to deal with the problem would be to use a very restricted form. Form 10.07 is such a form. On inserting a charging clause in the will draftsperson’s own favour, see [11.7]–[11.14].

Appointing company other than trustee company as executor 10.15 Companies may not act as executors unless empowered by statute. Companies and corporations empowered by statute to act as executors are trustee companies and Public Trustees (in Victoria, the State Trustees). It follows that other companies should not be appointed as executors: see, for example, Will of Docker (1976) 12 ALR 521 (Northern Territory Supreme Court).

Renunciation by executors 10.16 Executors are not bound to accept the office (that is, they may renounce). However, the position becomes more complicated if the executor intermeddles in the estate. The law on renunciation will not be discussed here. It seems that an executor can renounce even after promising the testator to undertake the obligation, because a person ‘cannot have an estate put into him in spight of his teeth’: Thompson v Leach (1690) 86 ER 391 at 396; see further HAJ Ford and WA Lee, The Law of Trusts, Westlaw AU, [8310], accessed 15 July 2016.

Order in which executors are named in will 10.17 Where more than one executor is appointed, the executors will be named in the grant in the order in which they appear in the will. This may or may not have consequences depending on the assets involved: compare In the Will of Sands (1943) 44 SR (NSW) 281 (exercise of voting rights in companies). J Kessler and M Flynn, Drafting Trusts and Will Trusts in Australia, Lawbook Co, 2008, [5.55], say that the order in which trustees’ names appear ‘is of little significance’.

Exemption of executors and trustees from liability for loss 10.18 The question of exempting executors and trustees from liability for loss caused by their action or inaction is discussed in [29.21]. [page 173]

FORMS FORM 10.01 Appointment of two or more executors and trustees jointly I appoint as my executors and trustees [name] of [address] and [name] of [address] (‘my executors’, which includes my personal representatives and trustees for the time being). FORM 10.02A Appointment of executors and trustees in the alternative [Allows for one sole successive substitute.] (1) I appoint as my executor and trustee [name] of [address]. (2) If [name] refuses or is unable to act as my executor and trustee I appoint as my executor and trustee [name] of [address]. [Alternative subclause (2)]: (3) If [name] refuses or is unable to act as my executor and trustee I appoint as my executors and trustees [name] of [address] and [name] of [address]. (4) ‘My executors’ means the persons named or referred to in subclauses (1) and (2) while acting, and my personal representatives and trustees for the time being. FORM 10.02B Appointment of executors and trustees in the alternative (alternative form) [Allows for more than one sole successive substitute.] (1) I appoint as my executor and trustee [name] of [address]. (2) If [name] refuses or is unable to act as my executor and trustee I appoint as my executor and trustee [name] of [address]. (3) If [name] refuses or is unable to act as my executor and trustee I appoint as my executor and trustee [name] of [address]. [Alternative subclause (3)]: (4) If [name] refuses or is unable to act as my executor and trustee I appoint as my executors and trustees [name] of [address] and [name] of [address]. (5) ‘My executors’ means the persons named or referred to in subclauses (1), (2) and (3) while acting, and my personal representatives and trustees for the time being. FORM 10.03 Appointment of numerous executors and trustees: disagreement between executors [In relation to subclause (5), compare Form 10.08.] (1) I appoint as my executors and trustees [(list names and addresses, or) my children (if so instructed)] (‘my executors’, which includes my personal representatives and trustees for the time being). (2) In subclauses (3), (4) and (5) only: (a) where probate of my will has been granted, ‘my executors’ means those of my executors to whom probate has been granted; and (b) where probate of my will has not been granted, ‘my executors’ means all my

executors. (3) Where my executors disagree, the decision of the majority prevails. [page 174] (4) Where my executors are evenly divided, the decision of [(name, or) the eldest] prevails. (5) None of my executors is excluded from participating in a decision only because of personal interest or concern in the decision. FORM 10.04 Wish that only two of a number of executors prove the will [Use if desired where numerous executors are appointed.] I express the wish, but do not require, that not more than two of my executors prove my will and act initially in its trusts. FORM 10.05 Appointment of sole executor and trustee [Use for appointment of a trustee company or the Public Trustee.] I appoint as my executor and trustee the [name — normally a trustee company or the Public Trustee (in Victoria, the State Trustees)] of [address] (‘my executors’, which includes my personal representatives and trustees for the time being). FORM 10.06A Foreign executors and trustees: appointment of executors for the Australian will [This form is used in the ‘Australian will’ (see Form 3.04A), while Form 10.06B would be used for the foreign will (see Form 3.04B). Care would have to be taken to ensure that later clauses in the wills referring to ‘my executors’ are changed to ensure that the correct instructions and powers are given to each group of executors. See also [3.2].] I appoint as executors and trustees of all my estate under the jurisdiction of the courts of Australia and all other countries in which this will has effect only and not elsewhere: [name] of [address] and [name] of [address] (‘my Australian executors’, which includes my Australian personal representatives and trustees for the time being). FORM 10.06B Foreign executors and trustees: appointment of executors for the foreign will [This form is used in the foreign will (see Form 3.04B), while Form 10.06A would be used for the Australian will (see Form 3.04A). Care would have to be taken to ensure that later clauses in the wills referring to ‘my executors’ are changed to ensure that the correct instructions and powers are given to each group of executors. See also [3.2].] I appoint as executors and trustees of all my estate under the jurisdiction of the courts of the country in which this will has effect only and not elsewhere: [name] of [address] and [name] of [address] (‘my [name foreign country] executors’, which includes my [name foreign country] personal representatives and trustees for the time being). FORM 10.07 Appointing a solicitor as executor and trustee (1) If [name] of [address] is at the time of my death in practice as a [(insert, if appropriate) barrister and] solicitor, I appoint [her (or) him] my executor and trustee. (2) If [name] is not then in practice as a [(insert, if appropriate) barrister or] solicitor, or

refuses or is unable to act as my executor and trustee, I appoint as my executors and trustees [name] of [address] and [name] of [address]. [page 175] (3) ‘My executors’ includes the persons named or referred to in subclauses (1) and (2) while acting, and my personal representatives and trustees for the time being. FORM 10.08 Interested executor not to participate in exercise of discretion I express the wish that where my executors intend to exercise a discretion and one of my executors is interested in the outcome of the exercise of that discretion, that executor leave the exercise of that discretion solely to the disinterested executor or executors, and concur in that exercise of discretion solely as a formal party.

1.

2.

3.

4.

5.

ACT: Administration and Probate Act 1929 s 10B; NSW: Probate and Administration Act 1898 s 41; NT: Administration and Probate Act s 19; SA: Administration and Probate Act 1919 s 5 does not impose a limit on the number of executors to whom probate may be granted at any one time. Qld: Succession Act 1981 s 48; Tas: Administration and Probate Act 1935 s 14(1); Vic: Follows the English practice of granting probate to not more than four persons, although the Administration and Probate Act 1958 s 6 does not impose a limit; WA: Follows the English practice of granting probate to not more than four persons, although the Administration Act 1903 (ACT) s 7 does not impose a limit. NSW: Trustee Act 1925 ss 6, 8; Qld: Trusts Act 1973 Pt 2; NT: Trustee Act ss 11, 12; ACT: Trustee Act 1925 ss 6, 8; Tas: Trustee Act 1898 ss 13, 14; SA: Trustee Act 1936 Pt 2 Div 1; WA: Trustees Act 1962 s 7; Vic: Trustee Act 1958 Pt 3. Personal communication from the Senior Deputy Public Trustee for the Australian Capital Territory to the author, and published with the authority of the Public Trustee. The authors are grateful to Wal Hutchinson and Stewart McNab for some of these ideas.

[page 177]

Chapter 11 PAYMENT OF EXECUTORS: GIFTS IN LIEU OF PAYMENT; GIFTS TO BE INDEPENDENT OF ACTING AS EXECUTOR OR TRUSTEE Introductory Notes Entitlement of executors to remuneration 11.1 The office of an executor and/or testamentary trustee is a gratuitous one, except where payment is permitted by the will, or where an application is made by the executor to the court for an award of commission for the executor’s or trustee’s pains and trouble.1 Where a testator wishes to appoint a non-beneficiary as executor, consideration needs to be given as to whether the nominated executor will be prepared to act gratuitously, or otherwise rely on the right to seek an award of commission. The difficulties associated with leaving the executor to rely on the right to apply to the court for an award of commission are summarised as follows: No payment for work can be made until an award of commission is obtained. An application for commission must be accompanied by filed

estate accounts and an application for an order that they be passed. On the commission application it must be shown that the assets have been collected or realised in a proper and timely manner; that the distributions have been properly made; that the expenses that have been paid are proper and necessary and are not excessive; the executor has not committed any breach of trust; the executor has not delegated improperly his or her functions; if it has been necessary for the executor to commence or defend proceedings, that the executor has been diligent in the conduct of those proceedings; that the executor has not left money uninvested for a long period of time; and that the executor has been open and frank with the beneficiaries: J Poole, Essentials for Preparing Executors’ [page 178] Estate Accounts and Procedures for Claiming Commission, paper presented for the Law Society of NSW and the NSW Bar Association on 11 August 2015 at pp 25–6 and see pp 32–3 on the important points to cover and generally on the procedure for preparing accounts for filing at the Supreme Court of New South Wales with a view to seeking orders passing accounts and for commission. Delay and additional costs may ensue. Remuneration is discretionary; and the amount is uncertain. ‘Usual rates of commission’ are referred to, but at best are ‘guidelines’ to decision-making: Re Estate Gowing: Application for Executor’s Commission [2014] NSWSC 247; BC201401563 at [54]– [59]. Affected beneficiaries have the right to file a Notice of Intended Objection, and to thereafter make submissions objecting to the award of commission. Commission is assessable income in the hands of an executor, whereas a legacy is not.

Taking the above into account, it is usually better for the testator to seek to come to terms with the nominated executor at the time the will is drafted, to ascertain whether the nominated executor considers that any proposed gift to them or charging clause in the will, provides sufficient reward for the work that may be involved. Each jurisdiction has legislation regulating the power of trustee companies and the Public Trustee (in New South Wales, the NSW Trustee and Guardian; in Victoria, State Trustees) to charge fees. See generally Mason and Handler: Succession Law and Practice New South Wales (Handler and Neal), looseleaf, LexisNexis Butterworths, Sydney, [1441.1]; HAJ Ford and WA Lee, The Law of Trusts, Westlaw AU, [13.510]ff, accessed 15 July 2016; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, LBC Information Services, Sydney, 1996, [86.01]ff.

Gifts to persons appointed executors 11.2 Difficulties of construction can arise when a person is appointed executor and a gift is made to that person in the will. Is the gift dependent on the beneficiary accepting the executorship?

Legacies given to executors 11.3 A legacy to a person appointed executor may be rebuttably presumed to have been made to that person as executor, and fails if the person does not undertake the executorship: Re Appleton (1885) 29 Ch D 893; Public Trustee v Kuehn [1983] 1 NSWLR 195; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, [86.11]ff; Mason and Handler: Succession Law and Practice New South Wales (Handler and Neal), looseleaf, LexisNexis Butterworths, Sydney, [1441.7]. In Public Trustee v Kuehn (at 196) Wootten J criticised the presumption as not being in accordance with ‘the likely intention of the testator’, but see IJ Hardingham, ‘Legacies in Favour of

Executors’ (1985) 59 Law Inst J 358. The will should therefore state whether the legacy is given conditionally on the executor or trustee proving or acting in the execution of the trusts of the will. [page 179]

Gifts of residue to executors 11.4 The presumption does not apply to gifts of residue: Re Maxwell [1906] 1 IR 386 (Court of Appeal), following Griffiths v Pruen (1840) 59 ER 851; Will of Bowlin (1919) 19 SR (NSW) 277; Estate of Taylor [1965] SASR 136 at 141–2; Estate of Zimmerman; Cocks v Colyer (SC (NSW), PD, Powell J, 22 March 1991, unreported). Some further exceptions and rules exist: see generally Halsbury’s Laws of Australia, [395-4665], [395-4670]; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales, [86.11]ff; Mason and Handler: Succession Law and Practice New South Wales (Handler and Neal), looseleaf, LexisNexis Butterworths, Sydney, [1441.7]. Forms 11.01 and 11.03 are therefore not strictly necessary where the gift is a gift of residue. However, where the estate is given to the children and they are appointed executors it is suggested that Form 11.01 or Form 11.03 should be included as a matter of course.

Legacy to executors may exclude commission 11.5 In some cases acceptance by an executor of a legacy under the will disqualifies the executor from later claiming commission: In the Will of Pauton (1909) 26 WN (NSW) 51. It is a question of construction of the will whether an executor having accepted a legacy is entitled to receive commission in addition to the gift. In Re White; Tweedie v Attorney-General [2003] 7 VR 219; [2003] VSC 433; BC200306790, Kellam J said (at [51]): Furthermore, in Re Lack [1983] 2 Qd R 613 McPherson J held that in the absence of an indication of the testator’s intention to the contrary, there is no presumption of

law that a legacy given to a person named as executor is, if accepted by him or her, prima facie to be regarded as exhausting a right to apply for, and the court’s power to grant, commission for time and trouble taken in performing duties as executor or trustee of the will.

The will should therefore say whether a legacy to a person named as executor is intended to exclude the right to claim commission or further remuneration. If the testator intends that the only remuneration the executor is to receive is that provided by the will itself, the will should make clear that the executor cannot disclaim the legacy and claim commission: Form 11.02 will achieve this result. On the other hand, if it is intended that the gift in the will is not to prevent the award of commission, the will should so provide: Form 11.01 will achieve this.

Legacy to executor to be priority gift 11.6 Executors’ commission is a testamentary expense and payable as such: Perpetual Trustee Co Ltd v Tasker (1913) 13 SR (NSW) 322. A legacy to an executor may deprive the court of power to grant commission, but there may be nothing out of which to pay the legacy if there is no residue after liabilities and specific devises and bequests have been met. It may, therefore, be wise to provide for executors’ legacies to be paid in priority to all other gifts: Form 11.04 is appropriate. [page 180] A provision that an executor can make professional charges is a legacy and abates rateably with other legacies: Commr of Stamp Duties (NSW) v Pearse [1954] AC 91 at 113 (Privy Council).

Charging clauses: forms of charging clause; inadequate charging clause 11.7

The legislation which allows the executor or trustee to

apply to the Supreme Court for commission for her or his pains and trouble is cited in [11.1]. Without the legislation the executor would not (in the absence of authority in the will) be entitled to remuneration and, if a professional person, could not charge for professional work done in the administration of the estate, for this would be to take a profit or advantage from their office: Will of Shannon [1977] 1 NSWLR 210; In re Will of McClung [2006] VSC 209; BC200604264 at [28]. The legislation authorises the court to grant commission to the executor and to take into account the executor’s pains and trouble (which may include professional work), but do not allow a professional executor to claim directly for professional work as such: Re Craig (1952) 52 SR (NSW) 265. Three possible forms of testamentary authority for an executor to receive remuneration were contemplated by Jordan CJ in Will of Kerrigan (1935) 35 SR (NSW) 242 at 245: The first possibility: … if the testator directs that his executor is to receive particular remuneration for his services as executor, he is restricted to this remuneration, and … the court will not, in the absence of special circumstances, exercise its jurisdiction to give him greater or different remuneration. [The question of inadequate provision for remuneration in the will is discussed in [11.8] below.]

The second possibility: if … the language used by the testator is permissive and not restrictive, and he merely authorises the executor to charge for his services, the executor may either, pursuant to the authority, make such charges as he considers reasonable … or he may, instead, make no charges but apply for commission in the usual way, bringing the nature of the services rendered to the notice of the court by affidavit.

The third possibility: [i]f, being a professional man, he is by the will authorised to charge for both professional and other services, he may charge for his professional services and in respect of his other services, may either apply for commission or render a bill for moderation.

See further Sacks v Gridiger (1990) 22 NSWLR 502 at 514, where the court quoted Will of Kerrigan; cf Condon v Miller [1981] VR 465,

in which a charging clause entitled a solicitor–executor to claim professional charges, but said nothing about commission. The solicitor–executor claimed, and was paid, professional [page 181] charges, and then claimed in addition, and was awarded, commission for his pains and trouble.

Inadequate provision for remuneration of executors 11.8 If the provision in the will for the executor to receive remuneration is inadequate, it seems that the court in some jurisdictions has a discretion to allow further remuneration, while in others it does not. The position in the various jurisdictions was set out by Kellam J in Re White; Tweedie v Attorney-General [2003] 7 VR 219; [2003] VSC 433, BC200306790 at [42]–[50] in a very helpful passage. The difficulties facing an executor who seeks additional remuneration should be borne in mind when the level of remuneration is being decided during the drafting process.

Clause empowering executor to charge professional fees and seek commission 11.9 Where an executor is a professional person the will should, if this is thought appropriate, permit that person to charge for work done in conducting the administration. Sometimes difficulty is experienced in finding a new trustee. A solicitor who is perhaps willing to act as trustee — but is in partnership with others and therefore bound to do her or his best for the partnership business — may be precluded from accepting a trusteeship which may take considerable time and yet be financially unrewarding. Form 11.06 empowers executors who are professional persons to charge professional fees and to seek commission. The clause can, it seems,

be inserted into a will by the person drafting the will in the drafter’s own favour, although precautions must be taken and it is suggested that this should not be done: see [11.11]ff.

Relationship between professional fees (or charges), nonprofessional fees and commission 11.10 ‘Professional costs’ were described and distinguished from ‘charges for non-professional activities’ in Will of Sheppard [1972] 2 NSWLR 714 at 718: … professional costs, that is to say costs which an executor would have been entitled to incur and charge against the estate from the use of independent persons in the role of solicitor, accountant and estate agent in the necessary work of administering the estate; [and] charges for non-professional activities, that is to say duties in administering an estate which could have been adequately performed by persons not exercising the skills or performing the duties of a solicitor, estate agent or accountant.

See too Will of Shannon [1977] 1 NSWLR 210. The phrase ‘all usual professional charges’ was commented on in Sacks v Gridiger (1990) 22 NSWLR 502. The court held (at 514) that the word ‘usual’ meant ‘not what [the solicitor concerned] usually charges, but what is “usual” in the profession generally’, and said that the clause limited the solicitor to charging for professional fees and not for non-professional services. The court set out how such charges would be calculated. [page 182] In Chick v Grosfeld (No 3) [2012] NSWSC 1536; BC201209886, White J construed the following clause: [A professional executor]… will be entitled, in connection with the trusts in this Will and including in respect of acts that an executor, trustee or legal personal representative could have done personally as if he or she were not such an executor, trustee or legal personal representative, to be paid, in lieu of any commission, all professional or other charges for any business or act done by him or her at the hourly rate of a director, principal or partner of the executor, trustee or legal

personal representative’s firm subject to retaining the responsibility for the management of any business or act done, delegate the work done to an appropriate third party (including member of the executor or trustee’s firm) …

White J determined that on the proper construction of the charging clause the executor was not entitled to charge his hourly professional rate for non-professional work on the basis that the charging clause allowed the executor to be paid for work where it would be proper for the executor to employ a solicitor to carry out the work, whether or not it was strictly professional work, but not for work that the executor would be bound to do without payment. Unless expressly authorised by the will, executors are not entitled to charge fees for non-professional work. However, they are entitled by statute to employ agents, to transact any business or do any act required to be transacted or done in the execution of a trust or in the administration of an estate, and to be allowed and paid all charges and expenses so incurred, unless no prudent person would employ the agent to transact the business or do the act.2 However, in Estate of Purton (1935) 53 WN (NSW) 148, Nicholas J determined that the indemnity provided by s 53 of the Trustee Act 1925 (NSW) extended only to charges which, owing to the nature of the estate and the nature of the work, are reasonable. For example, his Honour said, ‘a trustee may employ a solicitor to collect rent or to do clerical work, but he may pay him only the charges proper for a rent collector or for an amanuensis’. A recent determination on a review of a Registrar’s decision, on an application to pass accounts, as to the costs permitted to be paid by an accountant–executor from an estate is Estate of Falco; Falco v Lambert (No 3) [2015] NSWSC 1343; BC201510737. See also Re Estate Ford; Application for Executor’s Commission [2016] NSWSC 6; BC201600178 as to a review being an application for the personal benefit of an executor who is at risk as to costs. The consequence, then, for a professional executor when faced with non-professional work, is that consideration should be given to contracting out the work to a service provider willing to do it

for a reasonable charge. Difficulties will arise where the particular work cannot be contracted out; or where the nature of [page 183] the work must be done by the executor personally, again the executor is left with applying to the court for commission. Whether a professional executor is willing to take on an executorship on the basis that he or she will not be able to charge for non-professional work (but may be entitled to charge commission) should be considered at the time of will-drafting: see Chapter 10. No form is offered for the situation where a testator wishes to permit a professional executor to charge for non-professional work. Instead, the testator should make a gift to the nominated executor which is conditional on him or her taking on the role. If Form 11.02 is used, the testator will have full knowledge of the remuneration paid to the executor – although it is prudent to consult with the nominated executor at the time of drafting to ascertain whether the sum nominated is acceptable. For commentary on the professional obligations where a solicitor is instructed to draft a will appointing himself or herself as executor, see [11.11]–[11.14]. Commission is awarded for performance of non-professional executorial activities, and the amount of commission awarded is not directly affected by an allowance for professional fees: Will of Sheppard at 720.

Will draftsperson inserting charging clause in her or his own favour 11.11 It is clear that generally the purpose and effect of a charging clause is to give the executor a right to remuneration

greater than the statute alone would allow. It follows that a solicitor who drafts a will appointing herself or himself executor and inserting a charging clause that goes beyond what the statute alone would allow is drafting a will in her or his own favour. See A Box, ‘The Solicitor–Executor and Remuneration Clauses’ (2002) 76(8) Law Institute Journal 77–9. There are two kinds of charging clauses which need to be distinguished: cf Will of Sheppard and Will of Shannon. They are: a clause empowering the executor to charge professional fees and in addition to receive commission in the discretion of the court; and a clause empowering the executor to receive commission at a set rate: see [11.13].

Clause empowering draftsperson–executor to charge professional fees and to receive commission in discretion of court 11.12 If a client wants to appoint the solicitor drafting the will as executor and to include a clause empowering the executor to charge professional fees and in addition receive commission in the discretion of the court, the court will give effect to the clause provided the will draftsperson fully informed the client as to the effect of the proposed clause (noting that the conduct rules require advice regarding commission to be in writing — see [11.14]). The duty to explain to the testator the effect of the clause is a heavy one. Holland J said in Will of Shannon (at 217): In order that the testator should understand fully the effect upon his estate of the words proposed to be inserted, it is the duty of the solicitor or other

[page 184] advising draftsman to spell out to the testator the operation of such a provision so as to draw his attention to the fact that his estate would, or might, thereby be charged

more for the administration than if he appointed a lay executor or left it to the court to fix the remuneration.

In Will of Shannon the court held that the solicitor had indeed fully informed the client (in this case, that appointing a friend or family member would substantially reduce the costs of winding up the estate) and that the client had agreed to the clause. Accordingly, the court upheld the clause. Form 11.06 is such a clause. It is suggested that a will draftsperson who is a professional person preparing a will with such a provision should require the client–testator to obtain independent legal advice and should not herself or himself draft the will. The presence of such a clause in the will in your own favour may well be a suspicious circumstance: see Astridge v Pepper [1970] 1 NSWLR 542 at 551. Taking a benefit under a will that you have drafted may be a suspicious circumstance which suggests that the testator may not have had knowledge and approval of the gift. The onus will be on the beneficiary–draftsperson — that is, the solicitor — to dispel the suspicion and satisfy the court of the ‘righteousness of the transaction’: see Wintle v Nye [1959] 1 WLR 284; Re Steward [1964] VR 179; McKinnon v Voigt [1998] 3 VR 543; Roos v Karpenkow (1998) 71 SASR 497; AA Preece, Lee’s Manual of Queensland Succession Law, 6th ed, Lawbook Co, Sydney, 2007, [3.90]; and in the present work, [1.9]. If the clause entitles the executor to charge at a rate higher than the court would normally award — for instance, a clause entitling the solicitor–executor to charge ‘at the trustee company rate’ — there is no doubt that the solicitor is inserting into the will a clause in the solicitor’s own favour: see [11.11]. On the relationship between professional fees (or charges), nonprofessional fees and commission, see [11.10]. On whether it is wise for a solicitor to appoint herself or himself executor, see [10.10], [10.14].

Clause empowering executor to receive commission at set rate 11.13 In Re Croser (1973) 6 SASR 420, a solicitor drafted a will appointing himself executor and containing a clause empowering him to retain ‘a remuneration equal to that which would be payable to the Public Trustee’. Zelling J said (at 423): … it is a clearly improper clause in the case of an executor who is drawing the will and on whose advice the testator is acting. There is a clear conflict of interest and duty in such a case and such clauses should certainly not appear in wills drawn in these circumstances, if ever at all.

In Will of Shannon (discussed by CJ Rowland in R Baxt (ed), Annual Survey of Law 1977, Law Book Co, Sydney, 1978, p 357) Holland J declined to adopt Croser, and said (at 217): I do agree that the relationship of adviser and testator to which the learned judge refers is one of potential conflict of interest and duty, but the evil in it disappears if the testator is fully informed as to the effect of the proposed clause and consents to it.

[page 185] The guidelines envisaged by Holland J are that the testator must have ‘expressly instructed the solicitor to insert the very words used in the provision’ and in addition: … in order that the testator should understand fully the effect upon his estate of the words proposed to be inserted, it is the duty of the solicitor or other advising draftsman to spell out to the testator the operation of such a provision so as to draw his attention to the fact that his estate would, or might, thereby be charged more for administration than if he appointed a lay executor or left it to the Court to fix the remuneration.

Once again, it is submitted that a solicitor who is asked to draft a charging clause of this nature in her or his own favour should refuse to do so and should require the testator to seek independent legal advice.

Charging clause (or other benefit) in will drafter’s own favour: Australian Capital Territory, New South Wales, Queensland, South Australia and Victoria 11.14 The Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 commenced in New South Wales and Victoria on 1 July 2015 and in the Australian Capital Territory on 1 January 2016. They had been earlier adopted by South Australia (subject to the addition of certain ‘SA specific’ rules) and Queensland. The rules provide as follows: 12.1 A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule. 12.2 A solicitor must not exercise any undue influence intended to dispose the client to benefit the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client. … 12.4 A solicitor will not have breached this Rule merely by: 12.4.1 drawing a Will appointing the solicitor or an associate of the solicitor as executor, provided the solicitor informs the client in writing before the client signs the Will: (i) of any entitlement of the solicitor, or the solicitor’s law practice or associate, to claim executor’s commission, (ii) of the inclusion in the Will of any provision entitling the solicitor, or the solicitor’s law practice or associate, to charge legal costs in relation to the administration of the estate, and (iii) if the solicitor or the solicitor’s law practice or associate has an entitlement to claim commission, that the client could appoint as executor a person who might make no claim for executor’s commission,

[page 186] 12.4.2

drawing a Will or other instrument under which the solicitor (or the solicitor’s law practice or associate) will or may receive a substantial benefit other than any proper entitlement to executor’s commission and proper fees, provided the person instructing the solicitor is either: (i) a member of the solicitor’s immediate family, or

(ii) a solicitor, or a member of the immediate family of a solicitor, who is a partner, employer, or employee, of the solicitor

… Uniform regulation across jurisdictions had been on the agenda since 2004. The Council of Australian Governments (COAG) appointed the National Legal Profession Reform Taskforce to make recommendations and propose draft legislation. Ultimately only New South Wales and Victoria adopted the entirety of the recommended legislation, but as stated the conduct rules have been adopted by Queensland, South Australia and the Australian Capital Territory. For a more complete outline of the process, see ‘A New Framework for Practising Law in NSW’, factsheet published by Law Society of NSW,