Will Making - Legal Practitioners' Liability Committee

Preparing wills for clients is part of many lawyer’s stock in trade and is often a complex job requiring a deep understanding of a breadth of common law and legislative requirements.

The mistakes in this area often happen from not taking clear instructions from clients, not using clearly written precedents and not properly proofreading and road testing the final will to ensure it does what it is supposed to do. This section provides information about how and why errors occur and resources to help avoid them.

Articles
Alerts
Resources
Practice Risk Guides
Checklists
Videos

Would your client's will withstand a testamentary capacity challenge?

Will Making, Estate Administration 01 Dec 23

A recent case highlights that video recording interviews to take instructions for a will can help prove the will-maker had testamentary capacity.

Revised guide for practitioners to identify and avoid elder financial abuse

Conveyancing, Will Making, Estate Administration 13 Jul 23

Practitioners should always be alert to signs that an elderly or vulnerable client’s transaction is being facilitated by another person with a direct or indirect interest.

Case update — wills preparation duties

Will Making 02 May 23

A recent Queensland decision is a timely reminder of practitioner’s duties when preparing wills

Manner of holding property — do your clients understand?

Conveyancing, Will Making, Estate Administration 13 Apr 23

Clients who own property jointly may not appreciate the differences that flow from owning property as a joint tenant or as a tenant in common.

New guidance on executing wills remotely

Verification of Identity, Will Making 16 Nov 22

The recent ruling of Re Curtis [2022] VSC 621 provides important guidance for estate planning practitioners on the requirements for electronic signing and remote witnessing of wills by audio-visual link under the new section 8A of the Wills Act 1997 (Vic).

Trust deeds rule in SMSFs

Will Making, Estate Administration 07 Sep 22

The High Court decision of Hill v Zuda Pty Ltd is an important reminder that superannuation fund trust deeds are not all the same particularly when it comes to death benefit nominations.

Top 4 wills mistakes and how to avoid them

Will Making 07 Jul 21

Mistakes made when drafting wills continue to be a source of professional negligence claims against practitioners. The types of mistakes are recurring and often obvious when looked at with fresh eyes. Here are the top 4 mistakes and some tips on how to avoid them, or potentially fix the ones already made!

Requests for information about validity of will

Will Making, Professional Responsibility 12 Dec 18

Have you been asked to provide a statement as to the circumstances surrounding the preparation and execution of a will and to also provide copies of the will file? Did the request refer to Larke v Nugus? This article covers some key issues you should consider.

Will it be right?

Will Making, Estate Administration 01 Mar 18

This article covers common mistakes practitioners make in wills and estates matters that lead to a claim.

Are you doing enough to test testamentary capacity?

Will Making 05 Aug 16

When acting for a testator, practitioners must always be satisfied the client has testamentary capacity. The following claim serves as a reminder of the steps practitioners need to take when preparing wills.

Informal wills - the next instalment

Will Making 15 Dec 14

Howe v Fischer [2014] NSWCA 286 is a successful court of appeal decision in NSW for a practitioner who did not obtain an informal will before his client died.

iWill

Will Making, Estate Administration 14 Feb 14

Is making a will on an iPhone valid?

Informal wills should be front of mind

Will Making 21 Jun 13

The decision of Fischer v Howe [2013] NSWSC 462 is a timely reminder for practitioners preparing wills.

Video Conferencing in the COVID-19 era

Will Making, Powers of Attorney, Solicitors Certificates, Verification of Identity, Engagement/retainer management, Professional Responsibility 11 Jun 20

In this current environment when we are all trying to minimise contact with other people to avoid the spread of COVID-19, this alert highlights some risk management issues around video conferencing, especially for witnessing wills and solicitors certificates.

Medical Treatment Planning and Decisions Act 2016 (Vic)

Will Making, Powers of Attorney 14 Aug 18

The Medical Treatment Planning and Decisions Act 2016 (Vic) (the Act) came into force on 12 March 2018. It changes medical treatment laws, in particular the way people can manage their medical treatment decisions if they lose capacity. It replaces the use of medical powers of attorney and refusal of medical treatment certificates with appointments of medical treatment decision makers and advanced care directives.

Tax limitations

Conveyancing, Tax, GST, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Will Making, Powers of Attorney, Beneficiaries, Mortgages, Commercial 05 Jun 23

Time limits most commonly missed in relation to tax.

Bankruptcy limitations

Conveyancing, Tax, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Will Making, Beneficiaries, Mortgages, Personal Properties Securities, Solicitors Certificates, Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to bankruptcy.

Wills limitations

Will Making, Beneficiaries, Estate Administration 05 Jun 23

Time limits most commonly missed in relation to wills, a claim example and lessons learned.

Client Resources

A Guide for Beneficiaries

Will Making, Powers of Attorney, Beneficiaries, Estate Administration, Client resources, Professional Responsibility 01 Jun 23

This booklet provides a guide, in question and answer format, for beneficiaries about what it means to be a beneficiary, what is required of them and what is involved in managing and finalising an estate in Victoria. The information is general in nature and not specific legal advice. For more information beneficiaries should contact their legal practitioner.

Client Resources

Tenants and Tenants in Common - client resource

Will Making, Powers of Attorney, Beneficiaries, Estate Administration, Client resources 27 Mar 23

A downloadable diagram to help practitioners explain the differences between joint tenants and tenants in common.

Client Resources

A Guide for Executors

Will Making, Powers of Attorney, Beneficiaries, Estate Administration, Client resources, Professional Responsibility 01 Feb 23

This booklet provides a guide, in question and answer format, for executors about their role, their obligations and what is involved in managing and finalising an estate in Victoria.

For more information executors should contact their legal practitioner.

Superannuation checklist

Conveyancing, Professional Responsibility, Will Making, Mortgages 17 Jan 23

This checklist is designed to help practitioners avoid common mistakes when acting in superannuation matters. Practitioners may find it helpful to use it alongside our Superannuation practice risk guide

Practice Risk Guides

Superannuation — LPLC Practice Risk Guide

Conveyancing, Financial Agreements, Will Making, Mortgages, Professional Responsibility 14 Dec 22

This LPLC Practice Risk Guide focuses on helping practitioners to avoid the types of claims relating to superannuation matters that arise in family law, wills and estates and property work. In all areas simple oversight is the most common cause of claims.

Client Resources

Parent to child property loans: Things to consider - Client Brochure

Conveyancing, Will Making, Mortgages, Client resources 22 Jun 22

This brochure is provided by LPLC as a template for lawyers to use for client information purposes. The brochure outlines what your clients should consider when they are planning to provide financial assistance to their child for the purpose of buying a home. Firms can use the sample brochure as it is, or use the word version to tailor the wording to suit their needs or create their own branded brochure.

Practitioner Resources

Wills instruction resources

Will Making 06 Apr 22

LPLC have created two template documents to assist practitioners to collect the relevant information for preparing wills.

Checklist for terms of settlement

Property settlements, Will Making, Estate Administration, Personal Injury, Commercial 23 Aug 21

This Checklist is designed to help solicitors and barristers ensure they have correctly addressed all of the relevant issues in terms of settlement. Using this checklist will help avoid the most common mistakes LPLC sees in terms of settlement that lead to claims. Barristers may find it useful to use this checklist alongside LPLC's Good Counsel – Practice Risk Guide for Barristers.

Barristers Checklist for Safe Practice

Property settlements, Will Making, Estate Administration, Personal Injury, Commercial 23 Aug 21

This checklist provides a list of risk management steps and issues to consider for various stages of any brief. Using this checklist will help barristers avoid claims and provide good service to their clients. This checklist can be used alongside LPLC's Good Counsel –Practice Risk Guide for Barristers.

VOI Notes: Capacity, authority and identity

Conveyancing, Will Making, Estate Administration, Verification of Identity 01 Apr 21

These notes provide direction and useful links to assist in establishing capacity, authority and identity of clients.

Testamentary capacity

Will Making 14 Aug 20

The following Key Risk Checklist covers the core issues practitioners should consider when acting for a testator.

Practice Risk Guides

Weather-proofing Wills and Estates

Will Making, Powers of Attorney, Beneficiaries, Estate Administration 02 Aug 20

This LPLC Practice Risk Guide highlights the key risk areas in wills and estates work for legal practitioners, and provides recommendations and resources to help avoid claims.

Family provision claims

Financial Agreements, Will Making, Estate Administration 17 Jul 20

A checklist covering family provision claims when acting for claimants and acting for an estate.

Preparation of wills

Will Making 14 Oct 13

This checklist from 2013 covers key aspects of the preparation of wills.

Practice Risk Guides

Superannuation — LPLC Practice Risk Guide

Conveyancing, Financial Agreements, Will Making, Mortgages, Professional Responsibility 14 Dec 22

This LPLC Practice Risk Guide focuses on helping practitioners to avoid the types of claims relating to superannuation matters that arise in family law, wills and estates and property work. In all areas simple oversight is the most common cause of claims.

Practice Risk Guides

Weather-proofing Wills and Estates

Will Making, Powers of Attorney, Beneficiaries, Estate Administration 02 Aug 20

This LPLC Practice Risk Guide highlights the key risk areas in wills and estates work for legal practitioners, and provides recommendations and resources to help avoid claims.

Tax limitations

Conveyancing, Tax, GST, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Will Making, Powers of Attorney, Beneficiaries, Mortgages, Commercial 05 Jun 23

Time limits most commonly missed in relation to tax.

Bankruptcy limitations

Conveyancing, Tax, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Will Making, Beneficiaries, Mortgages, Personal Properties Securities, Solicitors Certificates, Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to bankruptcy.

Wills limitations

Will Making, Beneficiaries, Estate Administration 05 Jun 23

Time limits most commonly missed in relation to wills, a claim example and lessons learned.

Superannuation checklist

Conveyancing, Professional Responsibility, Will Making, Mortgages 17 Jan 23

This checklist is designed to help practitioners avoid common mistakes when acting in superannuation matters. Practitioners may find it helpful to use it alongside our Superannuation practice risk guide

Checklist for terms of settlement

Property settlements, Will Making, Estate Administration, Personal Injury, Commercial 23 Aug 21

This Checklist is designed to help solicitors and barristers ensure they have correctly addressed all of the relevant issues in terms of settlement. Using this checklist will help avoid the most common mistakes LPLC sees in terms of settlement that lead to claims. Barristers may find it useful to use this checklist alongside LPLC's Good Counsel – Practice Risk Guide for Barristers.

Barristers Checklist for Safe Practice

Property settlements, Will Making, Estate Administration, Personal Injury, Commercial 23 Aug 21

This checklist provides a list of risk management steps and issues to consider for various stages of any brief. Using this checklist will help barristers avoid claims and provide good service to their clients. This checklist can be used alongside LPLC's Good Counsel –Practice Risk Guide for Barristers.

VOI Notes: Capacity, authority and identity

Conveyancing, Will Making, Estate Administration, Verification of Identity 01 Apr 21

These notes provide direction and useful links to assist in establishing capacity, authority and identity of clients.

Testamentary capacity

Will Making 14 Aug 20

The following Key Risk Checklist covers the core issues practitioners should consider when acting for a testator.

Family provision claims

Financial Agreements, Will Making, Estate Administration 17 Jul 20

A checklist covering family provision claims when acting for claimants and acting for an estate.

Preparation of wills

Will Making 14 Oct 13

This checklist from 2013 covers key aspects of the preparation of wills.

Preparing a will — do the basics well

Will Making 02 Oct 23

Preparing a will for clients involves more than a one size fits all approach. It requires a deep understanding of the law, thorough information gathering, attention to detail, and effective communication.

Family provision litigation: Do the basics brilliantly

Will Making 17 Jun 22

Family provision litigation is fraught with risk as there is often strained emotions, difficult fact scenarios and high burdens of proof.

Wills drafting tips

Will Making, Estate Administration 19 May 22

Many of the claims LPLC sees in the wills and estates area of law relate to mistakes in the drafting of wills including where the client’s instructions are not accurately reflected in the will. This webinar considers wills drafting claims and tips will be provided on how to avoid these claims.

Attention to detail in wills and estates

Powers of Attorney, Beneficiaries, Will Making, Estate Administration 28 Aug 18

Most mistakes made by wills and estates lawyers involve administering the estate. Lawyers might think that this is the easy part of the job, but unfortunately appears not to be the case and has been the second most costly claims area.

Conflicts

Conveyancing, Financial Agreements, Will Making, Personal Injury, Commercial, Verification of Identity, Engagement/retainer management, Professional Responsibility 25 Sep 17

Practitioners who act for multiple parties are often caught unaware by conflicts, which can be difficult to anticipate and arise before the danger becomes apparent. This leaves the practitioners exposed to allegations of breach of duty and the conduct rules, and preferring the interests of one client over another. In acting for more than one party, you create a minefield for yourself.

Get risk advice in Personal & Succession law work

+61 3 9672 3800 lplc@lplc.com.au