Hutley's Australian wills precedents

Full Title
Copyright
Publisher’s Note
About the Authors
Preface
Acknowledgments
Table of Cases
Table of Statutes
Table of Contens
	1 General Considerations — Estate Planning; Validity of Will, Requirements for; Capacity; Concealment of Will; Order to Produce Will
		Introductory Notes
			Suggested method of using these precedents
			Estate planning
			Estate planning linked to tax planning and will drafting
			Estate plan should be flexible
				Drafting your own will, or will for family member
			Interview client personally: do not draft for client you have not seen
			Requirements for validity of will
			Fraud, undue influence, and lack of knowledge and approval
			Onus of proof; shifting evidentiary onus of proof; importance of solicitor’s evidence in contested probate proceedings
			Pressure on testator; interviewing client in presence of another person
			Testamentary capacity; should solicitor draft will where solicitor doubts capacity?
			Age and testamentary capacity
			Testamentary capacity: soundness of mind, memory and understanding
			Solicitor’s duties in relation to capacity
			Wills for persons without testamentary capacity
				South Australia’s provisions are restrictive
			Concealed will; order to produce will; right to inspect will
	2 Drafting a Will Using These Precedents; Taking Instructions and Structuring a Will
		Introductory Notes
			General comments; codicils; urgency; death before will executed
				Learning will drafting; general considerations — understanding testator’s affairs
				Urgency; liability in negligence for delay
				Death or incapacity of testator before will executed; stopgap or interim will; could instructions for will be probated under dispensing provisions?
					Solutions
			Estate Information Manual
			Interviewing client for will
				Keep adequate file notes
				Interviews needed
				Purposes of interview
				Is there an existing will?
				What is testator’s domicile?
				Might testator marry or divorce?
				Is there a power to appoint a controller, appointor or custodian of family trust; to appoint beneficiaries under a will? Is there a business succession agreement?
				Is there a contract to leave property by will?
			What are the testator’s assets and liabilities? Kinds of assets
				List of assets and liabilities
				Do assets really belong to testator?
				Real property as an asset of testator
				Superannuation, proceeds of life insurance policies and friendly society investments as assets of testator
				Other assets of testator
				Foreign assets of testator
				Debts owed to testator; liabilities of testator
					Debts owed to testator
					Debts owed by testator
				Who are going to be beneficiaries? Will people be disappointed by the will? Are there any moral obligations to particular persons?
				Family members; relationships
					Aboriginal testators
				Blended (or ‘melded’) families
				Gifts to persons who receive or might receive social security/Centrelink benefits
				Minor children as beneficiaries
				Gifts to brothers and sisters of the testators in corresponding wills of spouses
				Beneficiaries with disabilities
				Doctors or health care givers as beneficiaries
				Bankrupts as beneficiaries
				Who are going to be executors and trustees?
			Drafting the will: preliminary considerations
				Multiple original wills
				Codicil or whole new will?
				Duplicating the law in the will
				Mixing precedents
				Joint tenancy and tenancy in common
				Tax implications of provisions in the will
				Superannuation: importance of in drafting
			Drafting the will: process of drafting and structure of a will
				Is the draftsperson working directly on a computer, or taking instructions for a secretary to prepare the document?
				Framework (structure) of will: summary of how to use precedents
				Structure of will and order of precedents
				Selection of ‘most used precedents’: Appendix A
				Outline (or ‘plan’) of will being drafted
				Technical process of drafting a will using this book
				Correct names and addresses of testator, beneficiaries, executors, guardians, etc
				Gift clauses all in one sentence beginning ‘My executors hold my estate on trust:’
				Schedules
				Placement of schedules
			Drafting the will: a few particular words and their use
				Words to beware of
				‘Shall’ and ‘must’
				Mandatory or precatory words
			Drafting the will: types of provisions and gifts
				30-day survivorship requirement: death of beneficiary not having survived testator by 30 days
				Executors and trustees, choice of; machinery for administering the will and its trusts
				Gifts of money (pecuniary legacies): beware double gift where there is 30-day survivorship requirement
				Specific gifts: problems with gifts of specific items
				‘Residue’: gifts of
				Gifts to charities and unincorporated associations
				Life interests and rights of occupation
				Trusts
					Testamentary discretionary family trust
				Conditional gifts
				Failure of gifts; drafting to protect against or prevent failure of gifts
				Excluding particular persons from inheriting
				Delegation of testamentary power
				Mutual wills; contracts to make wills
				Incorporation of documents in the will
			Preparing will for execution
				Pagination; attestation not on separate page
				Corrections and alterations
			Execution: checking the will, counsel’s advice; financial advice
				Negligence: checking the will — textual errors; incorrect advice
					Is there a duty to check whether the testator’s statements concerning the testator’s property are correct?
				Difficult wills; counsel’s opinion or financial advice
			Execution: formalities
				Witness–beneficiary
				Formalities for the execution of a will or codicil
				Will executed unsupervised
			After execution
				Copies of the will
				Envelopes
				Binding the will
				Attachments to wills
				Safekeeping of the will
				Solicitor retaining the will
				Revoked wills — retention
			Advice and suggestions to clients
				Matters to raise with clients
				Suggestions to clients: to be given to all clients
				Regular review of will: need for
				Right to revoke
				Revocation by marriage; effect of divorce on a will
				Warn clients against creating informal documents which may be testamentary in nature
				Enduring powers of attorney
			Miscellaneous concerns: charging for wills; dispute mediation; deed of family arrangement; late changes to law; discovery of errors
				Charging for wills
				Disputes — mediation of testamentary contests
				Deed of family arrangement; disclaimer or renunciation of benefit
				Change in the law after will made
				Late discovery of errors
		Form 2.01 Example of instructions for will: illustrates the structure of a simple will: will of husband where corresponding wills are being prepared for a husband and wife with children, where neither has a child from a previous relationship
		Form 2.02 Example will drawn according to the instructions in Form 2.01
		Form 2.03 Framework of a will
		Form 2.04 Estate Information Manual
		Form 2.05 Instructions for signing your will
		Form 2.06 Suggestions to clients
		Form 2.07 Disclaimer of benefits under will
		Form 2.08 Disclaimer of benefits under intestacy
		Form 2.09 Provision in will exercising power to appoint controller, appointor or custodian of family trust
	3 Commencement and Testimonium; Wills for Assets in Foreign Countries
		Introductory Notes
			Commencement/Testimonium
			International wills
			Wills for testators with property in Australia and elsewhere
			Drafting foreign will
			Formal validity and substantive effect of foreign will
			Executors and foreign wills
		Form 3.01 Heading, commencement and testimonium
		Form 3.02 International will
		Form 3.03 Certificate by Authorised Person
		Form 3.04A Heading, commencement and testimonium clauses for wills for Australia and a foreign country Australian will
		Form 3.04B [Name foreign country] will
	4 Revocation Clauses
		Introductory Notes
			Need for revocation clause; wording the clause
			General revocation clause
			Limited revocation clause for use in a codicil
			Revocation where testator has wills in several jurisdictions
		Form 4.01 Comprehensive (general) revocation clause
		Form 4.02 Limited revocation clause
		Form 4.03 Revocation clause where testator has wills in several jurisdictions
	5 Directions as to Disposal and Use of the Body; Enduring Power of Attorney; Appointment of Enduring Guardian; Directions as to Undue Prolongation of Life
		Introductory Notes
			Executor has the right, and is subject to the duty, to dispose of the body
			Disposal of body directions: where they should be kept; wording
			Right of burial
			Use of body for anatomical, transplantation, therapeutic, medical or scientific purposes or for assisted reproductive treatment
			Enduring powers of attorney; directions as to medical treatment; living wills
				Enduring powers of attorney
				Enduring guardians
				Advance health care directives
				Powers, limitations and dangers
				Forms and precedents
		Form 5.01 Inexpensive disposal of body
		Form 5.02 General disposal of body clause
		Form 5.03 Cremation
		Form 5.04 Burial
		Form 5.05 Body to be available for anatomical, therapeutic, medical or scientific purposes
		Form 5.06 Body to be used for research by particular institution
		Form 5.07 Body not available for any purpose
	6 Deaths — Simultaneous or Near-Simultaneous; Presumption of Death; Order of Deaths Clauses; Intermediate Income
		Introductory Notes
			Lapse
			Provision for actual deaths
			Provision for presumed deaths — presumption of death
			30-day survivorship period for beneficiaries: express inclusion or exclusion
			One general 30-day survivorship provision for the whole will rather than one for each gift
			Wording survivorship provisions; intermediate income
			Intermediate income
			Survivorship provisions in wills of couples where one testator excludes the 30-day survivorship requirement
		Form 6.01 Presumption of survivorship
		Form 6.02 Standard clause, recommended for use in all wills except where Form 9.01 is used, requiring that beneficiaries survive the testator by 30 days
		Form 6.03 Exclusion of requirement that beneficiaries survive the testator by 30 days
	7 Children; Adopted, Surrogate and Ex-Nuptial Children; Guardianship
		Introductory Notes
			Definition of ‘children’: include in every will
			Adopted persons
			Surrogate children
			Foster or stepchildren
			Ex-nuptial children: statutory provisions
			Ex-nuptial children: dangers in not excluding persons related through ex-nuptial relationships
			Ex-nuptial children: drafting a provision to exclude persons related through ex-nuptial relations
				New South Wales
					Jurisdictions other than New South Wales
					All jurisdictions: another alternative; ‘reputed’ relations
			Child conceived but not yet born: en ventre sa mère
			Guardian: testamentary guardian; state and territory legislation gives power to appoint
			Concept of guardianship and Family Law Act 1975 (Cth)
			Western Australia
			Advantages and disadvantages of appointing a guardian
			Is testamentary guardian to act with surviving parent or not?
			Appointing more than one testamentary guardian
			Power of guardians who are not parents to appoint testamentary guardians
			Choice of executors where guardian is appointed
			Minor children: carers, financial provision for
		Form 7.01 Exclusion of adopted or surrogate children
		Form 7.02 Exclusion of foster or stepchildren
		Form 7.03 Exclusion of ex-nuptial children
		Form 7.04 Alternative form for exclusion of ex-nuptial children
		Form 7.05 Carer or guardian not to suffer financial hardship
		Form 7.06 Appointment of testamentary guardian
		Form 7.07 Appointment of testamentary guardian to act only if there is no surviving parent
		Form 7.08 Appointment of testamentary guardians to act only if there is no surviving parent
		Form 7.09 Appointment of guardian by a guardian who is not a parent
	8 Will Made in Contemplation of Marriage; The Effect of Divorce
		Introductory Notes
			Revocation by marriage: legal principles
			Drafting contemplation of marriage provision
			Will not conditional on marriage
			Domestic partners
			Will made in contemplation of marriage generally
			Effect of divorce
		Form 8.01 Contemplation of marriage expressed: will conditional on marriage
		Form 8.02 Contemplation of marriage expressed: will not conditional on marriage
		Form 8.03 Contemplation of marriage generally
		Form 8.04 Will not to be revoked on divorce or annulment
		Form 8.05 Will not to be revoked on termination of civil union or civil partnership
		Form 8.06 Will not to be revoked on revocation of deed of relationship
		Form 8.07 Will not to be revoked on termination of registered relationship
	9 Provision for Spouse or Partner
		Introductory Notes
			Gift to surviving spouse or partner: structure of wills and family provision risk
			Providing for failure of gift for unforeseen or unexpected circumstances
			Schedules: useful for provision for spouse or partner in complex will
			Administrative (machinery) provisions
			Placing administrative provisions in wills using schedules
			Placement of beneficial provisions in schedules; summing up placement of administrative and beneficial provisions
			Exclusion of 30-day survivorship requirement in wills using schedules, and legacies in wills of spouses or partners
			Will of other testator
			Wording and effect of gift to spouse or partner
			Protecting children where large gift, or gift of whole estate, to spouse or partner
			Blended (melded) family
			Blended family: giving whole estate to surviving spouse or partner
			Blended family: purposes testator will want to achieve
			Blended family: alternatives open to testator; take life insurance and superannuation into account
			Blended family: alternatives: leave whole estate to surviving partner
			Blended family: alternatives: create mutual wills
			Blended family: alternatives: create life estate
			Blended family: alternatives: create testamentary discretionary family trust
			Blended family: alternatives: create inter vivos discretionary family trust
			Blended family: alternatives: give major asset, for example, matrimonial home, to surviving present partner
			Blended family: alternatives: usual best solution is fair outright division on death of testator
			Blended family: aids to solving problem: increase available assets using superannuation
			Blended family: aids to solving the problem: increase the available assets using life insurance
			Blended family: family provision claims by past members of family whom testator does not wish to benefit
			Appointments of executors and guardians are placed in schedules
			Wills of partners who may later marry
		Form 9.01 Schedules for spouse or partner
	10 Appointment of Executors
		Introductory Notes
			Choice of suitable executors and trustees; appointment
			Appointment of sole executor
			Appointment of joint executors
			Numerous executors and trustees
			Same or different persons for executors and trustees?
			Choice of executors and trustees: trusts, life estates, minor beneficiaries, large estates; long-term administration
			Choice of executors where testamentary guardian
			GST and choice of executors
			Public Trustees as executors and trustees
			Will draftsperson appointing herself or himself executor
			Minors as executors
			Shifting executorships — executor ‘for the time being’
			Appointing foreign executors
			Appointing solicitor or firm of solicitors
			Appointing company other than trustee company as executor
			Renunciation by executors
			Order in which executors are named in will
			Exemption of executors and trustees from liability for loss
		Form 10.01 Appointment of two or more executors and trustees jointly
		Form 10.02A Appointment of executors and trustees in the alternative
		Form 10.02B Appointment of executors and trustees in the alternative (alternative form)
		Form 10.03 Appointment of numerous executors and trustees: disagreement between executors
		Form 10.04 Wish that only two of a number of executors prove the will
		Form 10.05 Appointment of sole executor and trustee
		Form 10.06A Foreign executors and trustees: appointment of executors for the Australian will
		Form 10.06B Foreign executors and trustees: appointment of executors for the foreign will
		Form 10.07 Appointing a solicitor as executor and trustee
		Form 10.08 Interested executor not to participate in exercise of discretion
	11 Payment of Executors: Gifts in Lieu of Payment; Gifts to be Independent of Acting as Executor or Trustee 022_E542_Chapter11.xhtml#ch11lev1@Introductory Notes
		Entitlement of executors to remuneration
			Gifts to persons appointed executors
				Legacies given to executors
				Gifts of residue to executors
			Legacy to executors may exclude commission
			Legacy to executor to be priority gift
			Charging clauses: forms of charging clause; inadequate charging clause
				Inadequate provision for remuneration of executors
				Clause empowering executor to charge professional fees and seek commission
				Relationship between professional fees (or charges), non-professional fees and commission
			Will draftsperson inserting charging clause in her or his own favour
				Clause empowering draftsperson–executor to charge professional fees and to receive commission in discretion of court
				Clause empowering executor to receive commission at set rate
				Charging clause (or other benefit) in will drafter’s own favour: Australian Capital Territory, New South Wales, Queensland, South Australia and Victoria
		Loss of professional charges if person benefiting from clause is witness to will
		Form 11.01 Gift to executor not excluding commission
		Form 11.02 Gift to executor excluding commission
		Form 11.03 Gift to executor not conditional on acting as executor
		Form 11.04 Instruction that legacies to executors rank in priority to other gifts
		Form 11.05 Professional charges clause
		Form 11.06 Professional charges clause including right to claim commission
	12 Executor’s Right to Buy Trust Property
		Introductory Notes
			Right of executor or trustee to buy trust property
			Valuations
			Court applications
		Form 12.01 Right of personal representative to buy or appropriate trust property
	13 Solicitors to be Employed by Executors
		Introductory Notes
			Testator may nominate solicitors to be employed
		Form 13.01 Request to employ a named solicitor, with substitutional provision
		Form 13.02 Request to employ a named firm of solicitors, with substitutional provision
		Form 13.03 Requirement that a trustee company employ a particular solicitor
	14 Family Provision; Financial Agreements — Prenuptial, Nuptial and Postnuptial
		Introductory Notes
			Family provision in Australia; eligible claimants; should testator keep provisions of will secret? Disappointment of family members
				Eligible claimants
				Should testator keep provisions of will secret from beneficiaries who will be disappointed?
			‘General considerations’ applicable to level of provision
			Avoiding family provision
				Avoiding family provision: multiculturalism and ‘moral duty’ test
			Avoiding family provision: contract and mutual wills
			Avoiding family provision: covenant
				Covenant and retaining control during life
			Avoiding family provision: survivorship agreement in partnership agreements, insurance policies or pension schemes
			Avoiding family provision: creation of joint tenancy with intended beneficiary
			Avoiding family provision: conversion into immovable property in appropriate foreign jurisdiction
			Avoiding family provision: creation of inter vivos trust
			Avoiding family provision: general comment on methods of avoidance
			Avoiding family provision: gift conditional on not taking family provision proceedings is void
			Avoiding family provision: New South Wales
			Avoiding family provision: practical solution for all jurisdictions?
			Family provision: differences between jurisdictions
			Release of rights to claim family provision; contracting out — general principles
			Release of rights to family provision in New South Wales
			Form of words to exclude particular persons from benefiting under will or intestacy
			Testator’s statement of reasons for disinheriting a relative
			Admissibility of statements by testator giving reasons for dispositions in will
				New South Wales
				Australian Capital Territory, Northern Territory
				Tasmania
				Victoria
				Western Australia
				Queensland, South Australia
			Whether to keep testator’s statements of reasons for dispositions in will
				Choice of executors
			Financial agreements: prenuptial, nuptial and postnuptial
		Form 14.01 Separate statutory declaration (not in will)
	15 Taxes and Duties
		Introductory Notes
			Death duties abolished; tax planning
			Capital gains tax
			How capital gains are taxed
			CGT assets
			Exceptions and exemptions
			Main residence exemption
				Main residence for part only of ownership period
				Concurrent income-producing use of main residence
			Calculating capital gain or capital loss
			Discounting
			CGT and deceased estates: what happens when owner of CGT asset dies?
			Passing of asset
				Gift to ‘exempt entity’ (charity etc) which is DGR is disregarded
			Not ‘passing’: gift to superannuation entity and to person not Australian resident
			CGT: joint tenants
			CGT: record keeping
			Drafting for CGT and other tax issues
				Not forcing sale of assets
				Options to purchase
				Care in making specific gifts
				Having power of appropriation
				Life interests and rights to occupy
				Pecuniary legacies
				Capital gains and losses realised during life of deceased
				Testamentary discretionary trust
			On whom is burden of CGT to fall?
			Superannuation
			Appointment of executors to deal with taxation issues
			Taxation advice disclaimer
			Incidence of duties in other countries
			Tax consequences of poor estate planning
		Form 15.01 Possible Commonwealth or state tax on capital of estates
		Form 15.02 Foreign duties
		Form 15.03 Capital gains tax
		Form 15.04 Disclaimer
	16 Releases
		Introductory Notes
			Wording and effect of release
			Consequences of failing to include release
		Form 16.01 Release of simple debt owing to testator
		Form 16.02 Release of secured debt
		Form 16.03 Release of debt and the debtor’s estate
		Form 16.04 Costs of discharge
	17 Life Insurance Policies and Superannuation
		Introductory Notes
			Life insurance policies, superannuation and other investments
			Life policies: nomination of beneficiary of policy
			Protection of life policies: bankrupt estates
			Availability of life policies for payment of funeral and testamentary expenses: bankrupt estates
			Superannuation
				Destination of superannuation proceeds: taking proceeds of superannuation into account
				Binding nominations
			Taxation of superannuation death benefit payments
			Payment of superannuation from estate
		Form 17.01 Instruction that life policy be available to pay debts
		Form 17.02 Authority to executor to apply life policy moneys
		Form 17.03 Payment of superannuation
	18 Gift of Whole Estate to Executors on Trust
		Introductory Notes
			Gift of whole estate to executors on trust is basic to these forms
		Form 18.01 Gift of whole estate to executors on trust
	19 Pecuniary Legacies
		Introductory Notes
			Relative size of pecuniary legacies, and capital gains tax
			Wording of legacies in corresponding wills of spouses or partners
			Pecuniary legacy should be expressed as fixed sum
			Substitution
			Simple pecuniary legacy
			Legacies to minors, grandchildren or nephews and nieces
			Gift to creditor of testator
			Gift to debtor of testator
			Order of payment of legacies
			Legacies to more than one beneficiary
			Minimising effect of inflation
			Interest on pecuniary legacies
			Legacy to brothers, sisters, and brothers- and sisters-in-law
			Legacy to named persons in equal shares
			Legacy to named persons in unequal shares
			Gift to person who might have disappeared, is missing or cannot be found
			Numerous pecuniary legacies; keep legacies to charities separate
			Legacy to executor or trustee
			Payment of legacy before administration complete
		Form 19.01 Common form of pecuniary gift
		Form 19.02 Pecuniary legacy in corresponding wills of spouses or partners to avoid giving double legacy
		Form 19.03 Gift to grandchildren equally
		Form 19.04 Gift to grandchildren by families
		Form 19.05 Gift to issue per capita
		Form 19.06 Gift to more than one beneficiary with provision for accruer
		Form 19.07 Gift to more than one beneficiary, no provision for accruer
		Form 19.08 Special power to discharge gift to minor
		Form 19.09 Special discharge power (alternative form)
		Form 19.10 Gift to beneficiary who is testator’s creditor
		Form 19.11 Gift to beneficiary who is testator’s debtor
		Form 19.12 Release of debt to testator
		Form 19.13 Gift to rank in priority to other legacies
		Form 19.14 Pecuniary legacy to be adjusted according to the price index
		Form 19.15 Interest on legacies to spouse and children
		Form 19.16 Interest on other legacies
		Form 19.17 Exclusion of interest on legacies
		Form 19.18 Gift to a person who might have disappeared, is missing or cannot be found
	20 Personal Property
		Introductory Notes
			Difficulties with gifts of personal property
			Failure of gift due to disposal (ademption) or item destroyed or ceasing to exist
			Long lists of chattels
			Accurate description of personal property specifically given
			Substitution and accrual
			Difficulties with gifts of personal property: ownership and charges
			Assets owned by testator subject to mortgage or charge
			Assets owned by third party such as finance company
			Assets owned by testator, money owed on credit sale
			Assets owned by persons as joint tenants
			Partnership assets, company owned assets, assets held on trust
			Expenses of maintaining property
			Personal effects (household chattels; personal possessions)
			Incorporation of documents by reference — lists
			Incorporation of audio list
			Word document admitted to probate under dispensing provision
			Distribution by trusted family member
			Gifts for maintenance of particular animals
			Instruction that pet be put down
		Form 20.01 Simple gift of specific assets
		Form 20.02 Asset subject to charge, to be primarily liable for debt (alternative to Form 20.04)
		Form 20.03 Gifts of chattels on hire-purchase
		Form 20.04 Gifts of chattels partly paid for
		Form 20.05 Gifts coupled with instructions as to cost of keeping them
		Form 20.06 Gift as determined by executors
		Form 20.07 Gift of private chattels
		Form 20.08 Gift of chattels contained in list
		Form 20.09 Gift of chattels to trusted person absolutely for distribution
		Form 20.10 Gift of chattels to trusted person absolutely for distribution (alternative form)
		Form 20.11 Gift of ‘personal effects’
		Form 20.12 Gift for the maintenance of a particular animal (alternative form)
		Form 20.13 Trust for the maintenance of a particular animal (alternative form)
	21 Shares and Other Interests in Respect of a Limited Company; Appointment of Directors
		Introductory Notes
			Difficulties with specific gifts of shares; shares bought on margin
			Ademption
			General gift of all securities
			Alternative provision in case of ademption
			Private and family companies
			Unequal division of securities
			Substitution
			Gift of securities to brothers, sisters, and brothers- and sisters-in-law
			Gift of securities to named persons in equal shares
		Form 21.01 Gift of securities in a named limited company with provision for amalgamation etc of the company
		Form 21.02 Gift of all securities in companies
		Form 21.03 Alternative provision for beneficiary if gift is adeemed
		Form 21.04 Exercise of power to appoint governing director
		Form 21.05 Gift of governing director’s share
		Form 21.06 Gift of special class of share
	22 Real Property
		Introductory Notes
			Debts charged on, and ownership of, real property
			Ademption of specific gifts
				Drafting to protect against ademption
			Gift of option to purchase real property; CGT implication
				Capital gains tax implications of testamentary option may be serious
				Alternatives to option
			Substitution
			Rural land
			Description of land
			Aboriginal land
			Testator is tenant in common; devise of testator’s share
		Form 22.01A Gift of real property
		Form 22.01B Gift of real property or surplus proceeds
		Form 22.02 Gift of option to purchase real property
		Form 22.03 Gift of interest of tenant in common — right of occupation to other tenant in common
	23 Specific Gift of Property Subject to Mortgage or Charge; Locke King’s Act
		Introductory Notes
			Specific gift of property subject to mortgage or charge — Locke King’s Act
			Potentially unsatisfactory operation of Locke King legislation
			Discharge of mortgage debt on property owned by joint tenants
			Express inclusion or exclusion of Locke King’s Act
		Form 23.01 Instruction that debt secured on property given be paid out of residue (negates Locke King’s Act)
		Form 23.02 Instructions as to discharge of mortgage debt on property held by the testator as a joint tenant
		Form 23.03 General instruction that debts secured on whatever property the testator may specifically give be paid by the person taking the property (imports Locke King’s Act into the will)
		Form 23.04 Instruction that debts secured on particular property specifically given be paid by the person taking the property (imports Locke King’s Act into gift)
	24 Annuities and Protective Trusts
		Introductory Notes
			Annuities — wording, effects, alternatives
			Annuities in corresponding wills of spouses or partners
			Providing annuity without unnecessarily tying up estate assets
				Gift of lump sum sufficient to buy annuity
				Gift of annuity to be purchased by executors — for single annuitant, or for children or grandchildren
				Executors empowered to set aside fund from which to pay annuity
				Multiple annuities to be paid by executors
			Simple annuity to be paid by executors
			Annuity payable to minors
			Inflation — annuity linked to Consumer Price Index
			Possible abolition of Consumer Price Index
			Annuity to supplement or maximise pension
			Protective trusts: annuity protected against bankruptcy or attempts by annuitant to capitalise annuity
			Protective trusts in South Australia and Northern Territory
			Termination or reduction of annuity on remarriage
		Form 24.01 Gift of lump sum sufficient to buy an annuity of a specified amount
		Form 24.02 Instruction to purchase annuity for specified amount
		Form 24.03 Simple annuity payable by monthly instalments
		Form 24.04 Annuity of specified sum to children (or grandchildren) during minority
		Form 24.05 Annuity adjusted according to the price index from date of will to death of testator and thereafter (preferred form of indexed annuity)
		Form 24.06 Annuity adjusted according to the price index from date of death of testator but with no adjustment between date of will and date of death (Form 24.05 is preferred to this form)
		Form 24.07 Annuity varying with permitted income of pensioner
		Form 24.08 Provision to set aside fund to pay annuity
		Form 24.09 Provision to purchase annuity
		Form 24.10 Protective trust of annuity (incorporation of statutory form)
	25 Trusts
		Introductory Notes
			Trust created on death of survivor, where corresponding wills of spouses or partners are drawn
			Testamentary discretionary family trust (Form 25.01); choice of precedent; advice and direction of court
				Detailed precedent for testamentary discretionary family trust with explanatory notes
				Asset protection: advantage of testamentary discretionary family trust
				Distributions to minors; keeping records
				When testamentary discretionary family trust is appropriate; other forms of trust
				Trustees seeking advice and direction from court
			Trusts and Centrelink benefits; veterans’ entitlements; pensioners; and occupants of subsidised housing
			Gifts to pensioners etc: possible solutions
			Exercise by will of power to appoint controller, appointor or custodian of existing trust
			Discretionary trusts and choice of trustees
			Accumulations
			Addition by will to funds in existing discretionary trust
			Discretionary trust — letter to executors
			Perpetuities; variation or amendment of trust
				Avoiding perpetuity period by using South Australia as forum
			Family members with disability
			Gamblers, alcoholics, bankrupts
			Disposition of assets already held in trust
			Trusts and capital gains tax
			Trusts for maintenance of particular animals
			Charitable and non-charitable trusts — keep separate
			Exemption of executors and trustees from liability for loss
			Trustees as beneficiaries; wide powers to benefit themselves — Does this imply no trust? Merger
				Is an arrangement of this kind a ‘sham’?
				What is the effect of finding that a trust is no more than a person’s ‘alter ego’ or ‘puppet’ or ‘creature’, or that a person has ‘de facto ownership’ of the trust property?
				Is there analogy between beneficiary who controls trustee of trust and donee of general power of appointment?
				Does ‘effective’ ownership amount to actual ownership?
				Conclusion
				Sources and authorities not considered in Public Trustee v Smith
				Implications of deciding that there is no trust
				Overall conclusion: trust is valid
				Conservative approach is available to draftsperson
			Appointing protector
		Form 25.01 Testamentary Discretionary Family Trust
		Form 25.01A 036_E542_Chapter25.xhtml#form25.01@Testamentary Discretionary Family Trust
		Form 25.02 Discretionary trust for testator’s children and grandchildren with power to distribute income and capital during subsistence of the trust
		Form 25.03 Discretionary trust for testator’s children and grandchildren with power to distribute income but not capital during subsistence of the trust
		Form 25.04 Gift on the trusts of an existing discretionary trust
		Form 25.05 Discretionary trust for person with disability where the estate is to be divided into unequal shares with one share to be held in trust primarily for the person with disability
		Form 25.06 Discretionary trust for person with disability where the estate or the residue is to be divided into equal shares with one share to be held in trust primarily for the person with disability
		Form 25.07 Discretionary trust for person with disability where the whole estate or the residue is to be used for the person with disability
	26 Life Interests, Including Occupation of Matrimonial Home, Substitutionary Provisions, Apportionment and Powers of Appointment
		Introductory Notes
			Avoid long-term provisions; limited usefulness of life estates
			Power of alienation of land subject to life estate; and other powers
			Testator’s home; ‘my principal residence at my death’
			Responsibility for outgoings
			Equitable life estates
			Short forms of equitable life estate
			Legal life estate
			Mere right of residence, and its family provision and taxation implications
			Right to occupy part of building
			Right to occupy: ‘ceased permanently to reside’
			Personal effects (household chattels) (personal possessions)
			Executors’ power to invest in land
			Income of residue given to spouse, partner or other person
			Right to terminate life interest
			Devolution of balance of subject matter of gift for life
				Subject matter to form part of residue
				Gift to named beneficiaries
				Discretionary trust
				Children of testator who survive life tenant
				Issue of testator who survive life tenant
				Children of holder of life interest
				Powers of appointment
			Life tenant: apportionment of income as between life tenant and beneficiary in remainder where whole estate is subject to life tenancy
			Balancing interests of life tenant and beneficiary in remainder: investment obligations of trustees, and apportionment between income and capital beneficiaries
			Apportionment between income and capital negatived
			Capital gains tax
			Accumulations
			Use of word ‘property’ rather than ‘assets’
		Form 26.01 Residence or substitute accommodation for life, using equitable life estate of fund which can be augmented or diminished, obligation to pay taxes on and maintain the property to fall primarily on fund
		Form 26.02 Residence or substitute accommodation for life, using equitable life estate of fund which cannot be augmented from the estate or diminished, obligation to pay taxes on and maintain the property to fall primarily on life tenant
		Form 26.03 Equitable life estate for spouse or other person, life tenant to maintain property
		Form 26.04 Equitable life estate for spouse or other person, the executors maintaining the property
		Form 26.05 Residence or substitute accommodation for life, using right of occupation
		Form 26.06 Right of residence in part of home
		Form 26.07 Provision to allow spouse or partner and children of full age to terminate life interest or right of occupation
		Form 26.08 Income of residue given to testator’s spouse or partner or other person for life
		Form 26.09 Gift over to children of testator alive at death of holder of life interest, with accruer and substitutional provision
		Form 26.10 Gift over to issue alive at death of holder of life interest, with accruer and substitutional provision
		Form 26.11 Gift over to children of holder of life interest, with accruer and substitutional provision
		Form 26.12 Gift over to children appointed by holder of life interest — usually spouse or partner
		Form 26.13 Apportionment negatived
	27 Residuary Gifts, and Gifts of the Whole Estate
		Introductory Notes
			Statutory order of application of assets and trust for sale
			‘Residue’: use of word ‘residue’ to avoid partial intestacy
			Gift to list of testator’s children or other relatives by name: disadvantage; danger of partial intestacy
			Failure of gifts: minor beneficiaries: should vesting be immediate or postponed until majority?
			Gifts to minor grandchildren: contingent on attaining majority: avoid partial intestacy
			Gifts contingent on reaching age greater than 18
			Gifts contingent on marriage under age of majority
			Gifts to beneficiaries as tenants in common or joint tenants
			Children: distribution on reaching majority
			Testamentary 30-day survivorship provision
			Statutory 30-day survivorship provision in some jurisdictions
			Substitution; testamentary provisions
			Is substitution to apply to all beneficiaries in the gift, or only to some of them?
			Are substitutes for predeceased beneficiary to be children, or issue, of that beneficiary?
			Substitution; statutory provisions
			Testamentary and statutory accrual (accruer) provisions
			How testamentary substitution and accruer provisions work together, using Form 27.04 as example
			Failure of gifts; basic rules
			Failure of gifts: what happens if beneficiary does not survive testator
			Failure of gifts: substitution or accrual may apply to save gift from lapse: beneficiaries are issue of testator
			Failure of gifts: substitution or accrual may apply: beneficiaries are not issue of testator
			Failure of gifts: testamentary accrual and severance: which is dominant
			Failure of gifts: no substitution or accrual provision
			Failure of gifts of residue or whole estate: gifts in fractional parts: result of failure of gift of residue
			Result of failure of gift of residue or whole estate
			Failure of gifts: failure for reasons other than failure to survive testator (or survive testator by 30 days)
			Gifts to ‘issue’ by representation: use of ‘per stirpes’
			Half-blood relatives and relatives by affinity
			Corresponding wills of husband and wife containing residuary gift to brothers and sisters or other persons
			Preventing intestacy by using gift to charity
			Gift to beneficiaries in unequal shares
				Accrual aspect
				Number of shares
			Death of child before making of will
			Gifts to parents of testator
			Personal effects (household chattels) to spouse or partner
		Form 27.01 Gift of whole estate or of residue to husband or wife or partner
		Form 27.02 Gift of whole estate or of residue with no provision for substitution
		Form 27.03 Gift of whole estate or of residue to named persons in equal shares, with provision for accrual and with provision for substitution if desired
		Form 27.04 Gift of whole estate or of residue to children with substitutional provision and provision for accrual
		Form 27.05 Residuary gift to brothers, sisters, brothers-in-law and sisters-in-law per capita with provision for accrual
		Form 27.06 Residuary gift to brothers, sisters, brothers-in-law and sisters-in-law with substitutional provisions, half to each family, with provision for accrual
		Form 27.07 Gift to named persons in unequal shares, with provision for accrual and substitution
		Form 27.08 Substitution of children of all of a list or class of original beneficiaries: delayed vesting for all beneficiaries
		Form 27.09 Substitution of children of all of a list or class of original beneficiaries: immediate vesting for all beneficiaries
		Form 27.10 Substitution of issue of all of a list or class of original beneficiaries: delayed vesting for all beneficiaries
		Form 27.11 Substitution of issue of all of a list or class of original beneficiaries: immediate vesting for all beneficiaries
		Form 27.12 Substitution of children of some only of a list or class of original beneficiaries: delayed vesting for all beneficiaries
		Form 27.13 Substitution of children of some only of a list or class of original beneficiaries: immediate vesting for all beneficiaries
		Form 27.14 Substitution of issue of some only of a list or class of original beneficiaries: delayed vesting for all beneficiaries
		Form 27.15 Substitution of issue of some only of a list or class of original beneficiaries: immediate vesting for all beneficiaries
		Form 27.16 Substitution of beneficiary’s husband or wife for deceased beneficiary
		Form 27.17 Exclusion of statutory substitutions
	28 Gifts to Charities and Incorporated or Unincorporated Bodies
		Introductory Notes
			Gifts to charities, incorporated and unincorporated associations—information required
			Name of charity or association must be correct
			Gifts to charities: failure of gift
			Gifts to charities: encouraging testators to make constructive and effective gifts to charities and charitable foundations; perpetuities
			Gifts to charities: capital gains tax considerations; beneficiary an exempt entity
				Gifts to charity: leave charity share of estate, or sum of money?
			Gifts of income to such charities as the executors may select
			New South Wales, Northern Territory, Queensland, Tasmania and Victoria: wills making gifts to non-charitable unincorporated associations
			Drafting gift to non-charitable unincorporated association in Australian Capital Territory, South Australia, Tasmania and Western Australia
				First consideration: constitution does not make provision for trustee or trustees to own property for benefit of members of unincorporated association
				Second consideration: does constitution make provision for taking transfer of specific items of personal or real property for association?
				Third consideration: is there ‘a large and fluctuating membership’ or anything else to ‘preclude members at any time from dividing the subject of the gift between them’?
				Further possibility: gift to treasurer on condition subsequent that treasurer use it for benefit of association
				Provision for amalgamation with another body
				General charitable intent may save otherwise void gift
			Specific legacies and devises to unincorporated associations
		Form 28.01 Gift to named charity
		Form 28.02A Gift of whole estate or of residue to several named charities successively
		Form 28.02B Gift to named charity or charities in executors’ discretion
		Form 28.02C Gift of equal sums of money to each of a number of named charities
		Form 28.02D Gift of unequal sums of money to various charities
		Form 28.02E Gift of equal shares of the estate or of the residue of the estate to various charities
		Form 28.02F Gift to named charities in unequal shares, with provision for accrual and substitution
		Form 28.03 Gift to named incorporated association which is not a charity, with substitutional provision for charity
		Form 28.04 Gift of income from trust fund to charity at executors’ discretion
		Form 28.05 Gift for general charitable purposes
		Form 28.06 Gift to the trustees of an unincorporated association which is not a charity
		Form 28.07 Gift to the committee members of an unincorporated association which is not a charity if the circumstances or constitution make division among the members impossible
		Form 28.08 Power to convert specific property to money
		Form 28.09 Gift to unincorporated non-charitable body in a New South Wales, Northern Territory, Queensland or Victorian will
	29 Powers of Executors and Trustees
		Introductory Notes
			Executors have wide powers; fiduciary position of executors; permissible forms of investment
				Permissible forms of investment
			Trustees’ powers to sell, to retain, and to allocate receipts or outgoings between capital and income
			Power to maintain and advance minors
			Date of vesting extended beyond minority
			Long-term administration: trusts, life estates, minor beneficiaries: choice of executors and trustees
			GST and choice of executors
			Loans to beneficiaries; acquisition of property for use or occupation by beneficiary; acquisition of property for profit or capital gain; borrowing by executors
			Trustees empowered to act as directors; to apply for or take up bonus shares, rights or benefits
			Power to delegate; and appoint nominees and custodians
			Power of appropriation of property to beneficiaries by executors
			Extending executors’ statutory power to sell
			Power to lease
			Executors’ power to set aside fund to enable accelerated distribution; income tax implications
			Giving trustees power to purchase estate property
			Carrying on business: businesses generally
			Carrying on small businesses
			Choice of executors where business is given as legacy
			Farming businesses: gift provisions in will; power to carry on business
			Position of executors carrying on business
			Provisions exempting executors and trustees from liability
				Professional trustees
				Unpaid trustees
				Will draftsperson inserting exemption clause in estate or trust he or she will be administering
			Provision for executors to take counsel’s opinion
			Provision for executors to obtain and consider investment advice
		Form 29.01 General form of powers of executors and trustees
		Form 29.02 Comprehensive power of disposition
		Form 29.03 Power to carry on unincorporated business or partnership
		Form 29.04 Power to carry on unincorporated business or partnership
		Form 29.05 Taking opinion of counsel
		Form 29.06 Advice on investments
	30 Codicils
		Introductory Notes
			Codicils: when to use; precautions
			Revocation clauses in codicils
		Form 30.01 Codicil
		Form 30.02 Second codicil
		Form 30.03 Codicil for endorsement on the original will
	31 Attestation
		Introductory Notes
			Formal requirements for wills
			Validity of will: inference of knowledge and approval where usual attestation clause is used
			Express statement of knowledge and approval where special attestation clause used for unusual methods of execution
			Dispensing provisions: formalities not observed; informal wills
				Onus of proof
				Literature on the dispensing provisions
				Dispensing provisions not uniform throughout Australia
				Requirements for dispensing provision to operate
				Document
				Testamentary intentions
				Without more?
				Should dispensing provisions be construed liberally?
			‘Stopgap’ or ‘interim’ will or document
			Audio will; Microsoft Word will
			Letters of administration with will annexed may be granted under dispensing statutes
			How dispensing provisions affect will draftsperson
			Minors as testators
				Australian Capital Territory
				New South Wales
				Northern Territory
				Queensland
				South Australia
				Tasmania
				Victoria
				Western Australia
			Minors as testators — privileged testators
			Alterations to will
			Witnessing function; who can be a witness?; witness–beneficiaries
				Witnesses must ‘attest and subscribe’ will
				Witness–beneficiaries
				Unreliable person as witness
				Child as witness
			Attestation clause
			Special attestation clauses for unusual methods of execution or testators with disabilities
				Blind testator or testator unable to read or write
				Testator unable to read but able to write her or his name
				Testator unable to read English but can speak it
				Testator unable to speak English or read it but can sign
				Testator unable to speak English or read it, or sign her or his name
				Testator able to read but unable to write
			Placement of attestation clause: pagination of will
			Foreign wills and wills with foreign element: formal requirements
			Wills for persons lacking testamentary capacity
		Form 31.01 Standard attestation for testator
		Form 31.02 Standard attestation for testatrix
		Form 31.03 Attestation where testator is blind or unable to read or write
		Form 31.04 Attestation where the testator is unable to read but is able to write her or his name
		Form 31.05 Attestation where the testator cannot read English but can speak it and can sign her or his name
		Form 31.06 Attestation where the testator is unable to read English or speak it but can sign her or his name
		Form 31.07 Attestation where the testator is unable to read English or speak it, and cannot write her or his name
		Form 31.08 Attestation where the testator is able to read but unable to write
		Form 31.09 Attestation where testator is able to read but unable to write (Preferred Alternative Form)
		Form 31.10 Statement that document or statement is not testamentary or not binding
		Form 31.11 Attestation clause for court authorised will for a person lacking testamentary capacity
	32 Backing Sheet
		Introductory Notes
			Backing sheet (cover)
		Form 32.01 Backing sheet (cover)
	33 Contracts as to Dispositions by Will; Mutual Wills
		Introductory Notes
			Dispositions by will may be subject of contract
			Subsequent marriage and contracts as to disposition by will
			Contracts as to dispositions by will should generally be avoided
			Property affected by contract should be specified precisely
				Survivor’s power to deal with assets after death of first-dying
				Contracts should not deal with matters extraneous to mutual wills arrangement
			Contract — form and proof
			Contracts to leave property by will and family provision
			Testamentary promises
			Oral mutual wills agreements
			Practical consequences for will drafting
		Form 33.01 Contract to make a will containing agreed provisions in a schedule
		Form 33.02 Contract to make mutual wills containing agreed provisions in schedules
		Form 33.03 Contract not to diminish estate
	Appendix A — Most Used Forms
		Dispositions by will may be the subject of a contract
		Form 3.01 Heading, commencement and testimonium
		Form 4.01 Comprehensive (general) revocation clause
		Form 5.01 Inexpensive disposal of body
		Form 5.05 Body to be available for anatomical, therapeutic, medical or scientific purposes
		Form 6.01 Presumption of survivorship
		Form 6.02 Standard clause, recommended for use in all wills except where Form 9.01 is used, requiring that beneficiaries survive the testator by 30 days
		Form 6.03 Exclusion of requirement that beneficiaries survive the testator by 30 days
		Form 7.01 Exclusion of adopted or surrogate children
		Form 7.02 Exclusion of foster or stepchildren
		Form 7.03 Exclusion of ex-nuptial children
		Form 7.04 Alternative form for exclusion of ex-nuptial children
		Form 7.05 Carer or guardian not to suffer financial hardship
		Form 7.06 Appointment of testamentary guardian
		Form 7.07 Appointment of testamentary guardian to act only if there is no surviving parent
		Form 7.08 Appointment of testamentary guardians to act only if there is no surviving parent
		Form 8.01 Contemplation of marriage expressed: will conditional on marriage
		Form 8.02 Contemplation of marriage expressed: will not conditional on marriage
		Form 9.01 Schedules for spouse or partner
		Form 10.01 Appointment of two or more executors and trustees jointly
		Form 10.02A Appointment of executors and trustees in the alternative
		Form 10.03 Appointment of numerous executors and trustees: disagreement between executors
		Form 10.04 Wish that only two of a number of executors prove the will
		Form 10.05 Appointment of sole executor and trustee
		Form 11.01 Gift to executor not excluding commission
		Form 11.02 Gift to executor excluding commission
		Form 11.03 Gift to executor not conditional on acting as executor
		Form 11.05 Professional charges clause
		Form 17.03 Payment of Superannuation
		Form 18.01 Gift of whole estate to executors on trust
		Form 19.01 Common form of pecuniary gift
		Form 19.02 Pecuniary legacy in corresponding wills of spouses or partners to avoid giving double legacy
		Form 20.11 Gift of ‘personal effects’
		Form 27.01 Gift of whole estate or of residue to husband or wife or partner
		Form 27.02 Gift of whole estate or of residue with no provision for substitution
		Form 27.03 Gift of whole estate or of residue to named persons in equal shares, with provision for accrual and with provision for substitution if desired
		Form 27.04 Gift of whole estate or of residue to children with substitutional provision and provision for accrual
		Form 27.05 Residuary gift to brothers, sisters, brothers-in-law and sisters-in-law per capita with provision for accrual
		Form 27.06 Residuary gift to brothers, sisters, brothers-in-law and sisters-in-law with substitutional provisions, half to each family, with provision for accrual
		Form 27.07 Gift to named persons in unequal shares, with provision for accrual and substitution
		Form 27.08 Substitution of children of all of a list or class of original beneficiaries: delayed vesting for all beneficiaries
		Form 28.01 Gift to named charity
		Form 28.02B Gift to named charity or charities in executors’ discretion
		Form 29.01 General form of powers of executors and trustees
		Form 30.01 Codicil
		Form 31.01 Standard attestation for testator
		Form 32.01 Backing sheet (cover)
	Appendix B — Model Wills
		General Comments
			Example of instructions for will and will drawn according to those instructions: illustrates the structure of a simple will: will of husband where corresponding wills are being prepared for a husband and wife with children, where neither has a child from a previous relationship
			Will of single person
			Wills of partners, one of whom has children from a previous relationship
			Will of Ann Johns, the first testator, a partner in a de facto relationship with children from a previous relationship
			Will of Peter Joseph Lent, the second testator, partner of Ann Johns
			Drafting a will of a parent of a child with an intellectual handicap
			Will providing for person with intellectual handicap
	Appendix C — International Convention: Hague Conference on Private International Law
		Signatories to Convention No 11
			Member States of the Hague Conference which are Contracting States to or have signed this Convention:
				Non-Member States of the Hague Conference which are Contracting States to or have signed this Convention:
Index