Estate planning and other end of life documents

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General advice memo re end of life documents – 27 July 2020

A. Usual instructions sought from client seeking a will

1. Correct name - What is your full and correct name? Have you always used this name?

2. What is your address and occupation?

3. Previous wills -

Do you have any previous wills?

  • If so, do you wish to revoke or alter the earlier wills?"

  • Please provide a copy of the previous will if at all possible.

4. Details of family and other relationships

  1. What are the details of your family?

  2. Are there other persons whom you might wish to benefit or who may have a claim on your estate?

  3. The purpose of this section is to canvass the range of relationships in order to obtain a complete understanding and particulars of beneficiaries or other persons who may have a claim. I may need information about your family to prepare the will and if necessary advise on family provision matters. A family tree may be useful. Details should be provided of former marriages, de facto relationships, and persons who have shared a household with the testator and been at any time wholly or partly dependent on the testator.

  4. If a class gift to children is proposed I can advise you as to who will be included in the description “children”. Included, unless excluded by the will, would be:

adopted children: see Adoption Act 2000 (NSW) s 95;

ex-nuptial children: see Status of Children Act 1996 (NSW) s 6; and

surrogate children: see Surrogacy Act 2010 (NSW) s 13 and s 109A of the Succession Act. Stepchildren and foster children would not come within the description.

5. Particulars of assets - What are your assets and their approximate values? Are any of the assets mortgaged, or is anything owing on any of the assets?

1. It is important to have a complete list of your assets and the mortgages or money owing on them. This is particularly so if the whole of the estate is not being left to one person. You may need to obtain documentary evidence of title to the assets. This is particularly important in cases where the testator may wish to leave property by will but may not be able to do so. For example, the property may be:

owned as a joint tenant;
owned by a partnership;
owned by a company;
owned by a trust;
superannuation and life insurance proceeds;
life interests terminating on the testator’s death; and
pensions and annuities.

2. The nature of the asset and its ownership at death will determine whether it will pass to the beneficiary under the will or how it will be treated outside of the will on the client’s death.

3. Knowing the value of the assets and details of liabilities will help to advise on:

the effect of your intended dispositions; and
the adequacy of dispositions at the time, having regard to possible family provision applications.

4. I can also explain the provisions of s 145 of the Conveyancing Act concerning the effect of debts charged on property.

6. Executor and trustee - Whom do you wish to appoint as the executor and trustee?”

  1. The distinction depends on the completion of executorial duties.

  2. More than one executor should be appointed unless the executor is an institutional executor such as

  • the NSW Trustee (formerly the Public Trustee) or a trustee company; or
  • a substitutional executor is also appointed.

7.  The gifts -

  • How do you intend your property to be distributed?”
  • What provisions are to be made if any of the beneficiaries die before you or property is disposed of by you?

8.  Payment of debts -

  • Which assets are to be used to pay debts and funeral and testamentary expenses?
  • There are legal aspects to priority for funeral expenses and administration of the will.

9.  Powers

  • What directions and powers should the executor/trustee be given in the will?”
  • One issue for your instructions may be whether the implied statutory powers (for example, to invest) should be varied?

B. Other important related end of life type documents

1. Enduring Power of Attorney – these are for another person to make decisions for you about legal and financial matters after you lose competency;

2. Enduring Guardianship – these are for another person to make decisions for you about health and lifestyle decisions after you lose competency;

3. Advance Care Directive - which directs your medical carers while you are incapacitated in relation to medical treatments you do/do not want at the end stages of life;

4. Superannuation death benefit nomination form Given this asset – like the next item - may be one of the biggest assets, this nomination form is critical for ensuring your intentions are carried out after death. Importantly, superannuation is usually excluded from distribution in a will as it is governed by the rules of the super fund and the law regarding dependants. The Super fund may require you to update the person nominated every few years otherwise the money may go to a dependant on the discretion of the trustee of the super fund.

5. Joint ownership of real estate – Given the family home is often the most valuable asset owned by anyone, it is critical to understand the Rule of Survivorship:

  • This rule means a joint owner cannot make gifts of their real estate to someone else in their will, contrary to the joint ownership on the land title registration. About 90% of people in a relationship who buy property and live together are both named on the land title registration in this way as “joint tenant” ;
  • The alternative form of ownership is “tenant in common” based on a defined percentage (often 50% each, but may vary by any fraction). Where there is a joint tenancy, the rule of survivorship takes over and the surviving partner gains 100% of the property but a tenant in common can make a gift of their share to anyone or divide it up as they see fit;
  • The Rule of survivorship can apply to any jointly owned assets – like a bank account or shares effectively excluding these items from the clauses of the will.


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