Wills and Estates | Powers of Attorney

Claims against legal practitioners in the wills and estates area have been relatively modest in recent times. However, we do see the same sorts of mistakes occurring regularly.

The mistakes fall into distinct categories of preparation of wills, assessing testamentary capacity, dealing with family provision claims, administering estates and conflicts of interest. Many of these mistakes could easily be avoided.



1 March 2018

Will it be right?

Mistakes in the preparation of wills can be avoided with careful proofreading. In the 2016-17 policy year, wills and estates claims accounted for 11.7 per cent of the total cost of claims and 8.4 per cent of the total number. In the previous 10-year period, these figures were 6.8 per cent and 3.2 per cent […]

1 June 2017

Stay on the estate

Practitioners handling estate matters should not get involved in family disputes. As disputes between family members arise frequently in estate matters, practitioners need to be alert to their duties to executors and beneficiaries as well as potential conflicts of interest. LPLC has received claims where practitioners handling an estate were not proactive in distancing themselves […]

1 March 2017

Ticking the box

There are many benefits to developing and using checklists.  They provide a framework for good supervision, they quality assure work and they provide good staff development. Whether you are a transactional lawyer or a litigation lawyer, the current legal environment is more complex and fast paced than ever. Whether doing high level legal thinking or […]

27 June 2016

In Check Issue 71 | June 2016

Table of contentsUrgent bulletin for conveyancing practitioners: 1 July new CGT withholding payments for real property sale of $2M or moreA further stamp duty increase for foreign purchasersChanges to lodging fees from 1 July 2016Changes to the Power of Attorney Act 2014Badenach v Calvert – the final chapterNew page for new firms on LPLC websiteCommon […]

31 March 2016

In Check Issue 70 | March 2016

Table of contentsCyber-crime – how alert are you?Common GST questionImportance of good working relationships within the professionReminder for RedCrest2016 Risk Management SeminarsCheck your contracts for deemed serviceNew look websiteLaw Institute Journal articles Cyber-crime – how alert are you? Lawyers and the legal profession are increasingly becoming targets of cyber-crime and while many law firms may not […]

18 March 2013

Solicitor executors and their fees

Table of contentsSolicitor executors and their feesWhen can a practitioner acting as executor charge fees or commission?What is involved in drafting a will with a payment or commission clause in it?What is the difference between charging commission and charging professional fees? Solicitor executors and their fees The issue of fees and charges a legal practitioner […]

27 October 2017

Managing risks in the wills and estates area

LPLC has published Wills and estates, the latest in our series of snapshots which are designed to provide data about claims against practitioners in specific practice areas as well as risk management strategies at a glance. This snapshot shows that between 2007 and 2017, claims in the wills and estates area accounted for eight per […]

20 October 2017

Time to retire retirement village claims

Since 2013/14 LPLC has seen 18 claims involving aged care facilities and retirement villages. The current estimate of the cost of these claims is in excess of $4million. Claims arise in the three main areas of: buying and selling retirement villages or aged care facilities advising on retirement village contracts for residents drafting wills. With […]

2 June 2017

Comply with overarching obligations in estate disputes

While estate disputes are usually acrimonious practitioners and their clients must always comply with their obligations under the Civil Procedure Act 2010 (Vic). Practitioners need to be proactive about advising executors of their obligations when proceedings under Part IV of the Administration and Probate Act 1958 (Vic) are on foot. In one claim, the executor […]

12 August 2016

Think before witnessing documents

The Powers of Attorney Act 2014 (Vic) brought in a new requirement that the statement of acceptance signed by attorneys must be witnessed. By signing the statement, the attorney agrees that they are eligible to act, understand their obligations and undertake to act in accordance with the Act. While this is not significantly different to […]

5 August 2016

Are you doing enough to test testamentary capacity?

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. Before taking instructions, the practitioner obtained medical advice to the effect that the terminally ill testator had testamentary capacity. He arranged to meet […]

23 September 2015

Key Risk Checklist: Witnessing an Enduring Power of Attorney

Witnessing an Enduring Power of Attorney Date:                        | Time commenced:                        | Time finished:                        | Location:                         In attendance Principal:                                                | Solicitor:                                                | Other witness:                         ☐  Photo identification of principal. – Specify form of identification produced eg driver’ s licence, passport ☐  Principal over 18 years of age. ☐  Principal has read pages 3-18 of the of the booklet entitled Take Control – a kit […]

17 July 2014

Key Risk Checklist: Administration mistakes

Delay in finalising estates ☐  Set out at the start of the retainer how you will communicate with the executors, how often that will be, whether you will communicate with the beneficiaries or whether you expect the executors to do that. ☐ Give practice risk guides to executors and beneficiaries explaining what is required to […]

17 July 2014

Key Risk Checklist: Family provision claims

Acting for claimants – out of time TFM ☐  Be familiar with the provisions of Part IV of the Administration and Probate Act 1958 (Vic) (Act). ☐  When taking initial instructions from a potential Part IV claimant ensure you clearly discuss with the client: the eligibility requirements for a family provision claim at section 90 […]

14 July 2014

Key Risk Checklist: Testamentary capacity

Testamentary capacity ☐  Take comprehensive instructions from the will maker in person, on their own. ☐  Be ever mindful of the issue of capacity and satisfy yourself that the will maker meets the various elements of the test, that is, the will maker must[1]: Be aware of and appreciate the significance of the act which […]

14 October 2013

Key Risk Checklist: Preparation of wills

Superannuation ☐  Obtain details of the client’s superannuation fund and policy. ☐  Determine whether the fund has binding, non-binding or no nominations. ☐  Review the superannuation fund trust deed if necessary. ☐  Alternatively, advise the client orally and in writing to contact the superannuation fund and obtain details of the nomination arrangements. The client should […]

24 April 2018

Avoiding superannuation claims

Table of contentsIntroductionCommon themesSuperannuation related claims from 1 July 2015 to 30 June 2017Areas of lawSuperannuation checklistAppendix one Introduction Every year LPLC sees claims involving superannuation funds. Claims sometimes arise because the practitioner does not have sufficient knowledge or experience with superannuation matters. Practitioners who regularly act in this area will agree that extensive expertise […]

24 January 2018

A guide for executors

Table of contents18 frequently asked questions about being an executor.1 Who is an executor?2 What is ‘an estate’?3 Who is a beneficiary?4 What is the role of an executor?5 Must an executor take on the responsibility?6 Who arranges the funeral?7 What happens to the bodily remains?8 Should there be a reading of the will?9 What […]

24 January 2018

A guide for beneficiaries

Table of contents20 frequently asked questions about being a beneficiary1 Who is a beneficiary?2 What is ‘an estate’?3 Who is an executor?4 What is the role of the executor?5 Do all the beneficiaries need to agree with decisions of the executor?6 Must an executor take on the responsibility?7 Who pays the executor?8 Who arranges the […]

11 May 2017

Know your limits

Table of contentsIntroductionLessons from the claimsTime limits most commonly missedClaims examples Introduction With the proliferation of time limits in legislation today missing limitation dates is a mistake that occurs in many areas of the law. The reasons for missing time limits are varied as are the potential repercussions. Sometimes it is a lack of knowledge […]

17 July 2014

Weather-proofing wills and estates

Table of contentsIntroductionMistakes in preparation of willsTestamentary capacityFamily provision claimsAdministration mistakesConflicts of interestChecklistsFamily provision claims Introduction Welcome to the first edition of Weather-proofing wills and estates. This booklet highlights the mistakes that are made by legal practitioners that lead to claims against them and offers recommendations on how to avoid those same mistakes. The claims […]

22 August 2017

Snapshot – Wills and estates

Snapshots provide data and main causes of claims in areas of practice as well as risk management strategies at a glance. Click the image to enlarge or download above.