LSB July 2018_Web

WILLS & ESTATES
mental test, or better still, organise for a
medical practitioner provide you with an
opinion on the matter.
If your client does not have testamentary
capacity but special circumstances warrant
the making of a Will, then you must
consider a judicial Will pursuant to Section
7 of the Wills Act 1936.
Minors
If your client is under 18 years of
age, then consider Sections 5 and 6
of the Wills Act 1936. Is your client
married or contemplating marriage? Are
there circumstances which warrant an
application to the Supreme Court for leave
to make a Will?
Prior Wills
If your firm is seeing the client for the
first time, ask whether they have made a
prior Will or Wills. Seek access to such
Wills and see what previous arrangements
were made. Ask why they are seeking to
make a new Will. The client may give a
reason that does not call for a new Will and
the client will appreciate your honesty in
such circumstances.
Executors
Take some time with your client to
determine who is best to be the executor
of the estate. Think about who should
be the reserve executor. An appointment
of the wrong executor or executors can
cause many problems upon the death of
the testator. Some executors simply cannot
agree with each other, even on simple
matters. Some executors will fail to act in a
timely manner. Raise these issues with your
client so they can give better consideration
to the appointment of the executor and
reserve executor.
Your client may wish to appoint a
solicitor or an accountant as the executor
or as a co-executor. If so, consider the
remuneration of a professional executor
and obtain instructions as to whether
to allow such person an executor’s
commission in addition to charging for
their time in administering the estate.
If the client wishes to appoint you as
the executor, then you must consider your
obligations as set out in Rule 12.4 of the
Australian Solicitor’s Conduct Rules.
Assets and liabilities
Take the time to gather as much
information about your client’s assets and
liabilities as possible. Also consider non
estate assets such as jointly owned assets,
life insurance and superannuation policies.
This will give you an insight as to your
client’s knowledge and appreciation of
their estate and financial position.
Be careful when dealing with land and
company assets. A client may have the
mistaken view that they own a particular
asset, but upon a search being carried out,
you find that land is registered differently to
your initial instructions or assets are owned
by a company rather than by your client.
Land
If the Will is giving an interest in land
obtain instructions to do a land title
search. The land may be held by more than
one person in joint names as joint tenants.
You may need to advise your client to
sever the joint tenancy or reconsider their
instructions. 6
Consider whether the disposal of land
will attract capital gains tax in due course.
A client may wish to gift a property to one
child and a second property to another
child. Both properties may be of similar
value, but one property may have a capital
gains tax issue whereas the second property
may be capital gains tax exempt, such as a
principal place of residence.
Also raise with the client what their
intention would be if the land was sold
before the death of the testator. Do they
want the beneficiary of the land to also
receive the proceeds of sale? If the land is
sold to fund an entry into a nursing home,
is the accommodation bond to be paid to
the residuary estate or to the beneficiary
that would have received the house
property otherwise? Be aware that the
accommodation bond will be paid pursuant
to the contractual arrangements made
between a resident and the bond holder.
Overseas Assets
If your client has assets overseas consider
whether your client should make an
Australian Will and an overseas Will in the
relevant country. Your Australian Will may
have to be worded so that it strictly applies
to Australian assets only. Be careful when
drafting revocation clauses so that you only
revoke what is appropriate to revoke.
Names & Family Members
Take time to fully understand the
client’s family structure and ask questions
to ensure that you obtain all relevant
information. Be careful with names. Make
sure you obtain the correct spelling of a
name and the full name. Your client may
have assets in different names due to slight
name changes over time.
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