LSB July 2018_Web

WILLS & ESTATES
It is helpful if your client prepares you a
family tree. You can often find out detail
that may otherwise have been missed. For
example, a client may have several children
and wishes to benefit such children and
their children. One child may have a
stepson. Is that stepson to be included as
a grandchild? Ask about adoptions, step
children or step grandchildren.
Shares
If a client wishes to gift shares in a
company to a beneficiary, consider what
is being gifted. Get the client to consider
dividend income and accumulations and
bonus shares. Ensure that your precedent
clause covers these variables.
Lapse
Consider with your client what they want
to happen specifically if a beneficiary dies
before the client. Does the gift fall into
the residuary estate or do they wish to
nominate substituted beneficiaries. The
same applies to the residuary estate. Have
the client consider nominating reserve
beneficiaries to avoid a potential intestacy
or partial intestacy. Raise with the client
what is to happen if all the beneficiaries
die in the one accident. They may consider
wider family members or charitable
beneficiaries.
Consider Section 36 of the Wills Act
1936. It has limitations as a substitution
clause, and you should draft your own
comprehensive substitution clauses to
better reflect your client’s wishes.
Marriage & Divorce
Having obtained the instructions
consider whether specific advice needs
to be provided to your client. Are they
contemplating marriage? Are they about to
separate or go through a divorce? Advise
your client of the effect of marriage and
divorce on the Will.
Power of Appointment
If a client has a family trust or other
trust arrangement enquire about the
Appointor. If the client is the appointor
consider who they wish to pass the power
of appointment to but check the Deed
of Trust instrument first before drafting
the power of appointment clause, as there
may be conditions to the exercise of such
power.
Have your Will instruction notes signed
Before you conclude the interview with
32 THE BULLETIN July 2018
your client, have the client sign your notes
in the presence of your secretary and
yourself if possible. This allows you to
propound the notes as a Will if your client
passes away before signing a completed
formal Will.
It is handy to see your client’s signature
and compare it with the given name. Raise
any discrepancy with your client.
DRAFTING THE WILL
Avoid Delay
Once you have complete instructions for
the Will, get on with the drafting of the
Will so that the Will is executed without
delay. If your instructions are incomplete
due to the need for further information
from your client or from an accountant,
follow up on the required information.
For most clients aim to send a
completed draft within 7 days of taking
the instructions. For the client who is
close to death you may have to arrange
matters so that the Will is signed that same
day. Consider the circumstances and act
accordingly. A solicitor owes a duty of care
to the intended beneficiaries of an estate
who stand to lose an inheritance due to the
negligent delay. 7
Will Precedents
Take the time to understand your Will
precedent clauses and how to vary them
to suit your client’s needs. Be careful
when adapting clauses from different Will
precedents as the terminology may differ.
Likewise, be careful when cutting or
copying and pasting on the computer as
often important words are inadvertently
omitted or words are repeated.
Codicils
A simple change to a Will can be made
by a codicil. However, if you prepared the
Will, it should still be on your computer or
server. It is a simple exercise of changing
the Will. This avoids having a Will and
codicil which makes things easier when
dealing with the probate process upon the
death of the client. If your client shows
you a previous Will and several codicils,
advise your client to instruct you to
consolidate all the testamentary intentions
in a new Will.
Structure of the Will
When drafting the Will based on the
client’s instructions it is important to keep
in mind the basic structure of a Will. The
structure of a Will usually complies with
the following order:
1. Identity of Testator
2. Revocation clause
3. Contemplation of Marriage clause (if
applicable)
4. Commorientes Clause*
5. Appointment of Executors & Trustees
6. Authority to deal with Digital or Online
Assets
7. Cremation / Burial / Funeral
Directions (if any)*
8. Appointment of Guardians (if any)
9. Power of Sale to pay Funeral Expenses,
Testamentary Expenses and Debts
10. Gifts of Personal Property
11. Gifts of Real Property / Life Interests
/ Right to Occupy / Protective Trusts
12. Gift of the Residuary Estate
13. Substitution clauses
14. Executor / Trustee powers – Power of
Advancement / Power of Appropriation
/ Investment / Management of a
Business / Power to Postpone Sale
15. Charging clause (if any)
16. Date and Attestation clause
17. Back Sheet
* The above order is not mandatory.
Some practitioners prefer to place the
funeral directions, and guardianship
appointment clauses at the end of the Will.
Over time you will develop your own
style and develop confidence to draft your
own clauses to meet the specific needs of
your clients. It is important however to
quickly become familiar with the standard
clauses required in Wills.
Proof reading
Set aside time to proof read your draft
Will before sending it to your client. If
possible, have another solicitor proof read
your draft Will. Often another person
will spot drafting errors more readily than
when you proof read your own work.
Will Paper
Use good quality paper for your final Will
as the Will may have to last many decades.
Avoid attaching any fastener to your
original Will which over time will leave a
mark on the Will. Instruct your office staff
on this requirement.
Attach a back page to the Will and
include the date and name of the testator
and your firm details. If the Will is
admitted to probate in due course the
executor will have to sign the back page. 8