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Binding Financial Agreements & Will drafting essentials
Will drafting is an important skill to possess as a junior solicitor. Unfortunately, you don’t always get the opportunity to refine your drafting skills in university which makes the leap into real-life practise particularly daunting.
The key question here is; what components are necessary to appropriately prepare wills as a junior solicitor?
After all, a negligence claim down the line could carry dire consequences for you and your principal, especially at the outset of your career.
Making a formal will
It is imperative that solicitors aim to draft a formal will. A formal will comprises the following:
- The will is in writing;
- The will is signed by the testator/testatrix;
- The will is witnessed by two individuals;
- All witnesses are present when the testator/testatrix signs the will;
- The witnesses to the will then sign the will.
It is equally as important to protect the condition of the original Will and ensure that no additional documents are attached following signing. This is to avoid the Court raising requisitions against a grant of probate. Solicitors are advised to bind wills that exceed one page.
While solicitors are at liberty to bind wills as they see fit, it is widely accepted that wills should be placed on a cardboard back-sheet with a plastic front cover, affixed together with an eyelet. It is critical that a paperclip is never used to affix a will, as they can leave a mark which may only be discovered when it is too late to rectify.
Accurately recording client instructions
During the Covid-19 pandemic, the use of video technology became an unprecedented “norm”. However, it is important that client instructions for will drafting be obtained in-person whenever possible.
In doing so, solicitors can be confident that the client is being seen alone without any undue pressure or coercion. In circumstances where instructions can only be obtained via video technology, the client should be asked to prove that no one else is present in the room.
Junior solicitors can use pre-prepared instruction sheets whilst obtaining instructions from the client. Lexon instruction sheets are widely used throughout the profession in Queensland and they guide users to obtain details such as, the identity of the client and their partner (if any), details of all children (if any), details of the intended executor(s) and beneficiaries, the situation of all assets and liabilities, details of will instructions and a checklist for capacity. This instruction sheet is easily accessible through the LEAP practice management software and others.
Recording accurate instructions will protect junior solicitors from missing important information, which reduces the possibility of having to rectify the will in the future. Files relating to the drafting of wills should be retained for a period of seven years after the grant of probate.
Powers
Executors should always be granted wide-ranging powers. In addition to executor powers, the following should be included in all wills:
- The power for the testator/testatrix to apply their discretion in relation to the health, education and maintenance of a child.
- The power to appropriate assets from the estate for market value.
- The power of a beneficiary to contribute shares to a special disability trust formed in the name of that beneficiary.
Beneficiary selection
Changes in beneficiaries will occur from time to time, usually because of the birth or death of family members. Junior solicitors should consider careful drafting when making dispositions as to children. If a will maker advises that they do not anticipate further children being born, children should be named specifically in the Will.
In circumstances where the will maker anticipates more children, the term ‘my children’ should be used. If the will maker has ex-marital children, it needs to be made clear that only the children of the relationship with a particular person are to be included.
Junior solicitors must also consider what will happen if a beneficiary fails to survive the testator. In circumstances where a testator’s child fails to survive the testator, any gifts will usually fall to the child’s child.
For all other beneficiaries, it is common for the specific gifts to fall into the residue. Solicitors have a duty to approach this situation delicately with the client, and ensure the matter is dealt with appropriately in the Will.
Family disputes
Although clients may believe they have the authority to merely exclude someone they don’t like from their Will solicitors need to carefully consider whether that excluded beneficiary is an ‘eligible person’.
An eligible person in Queensland must fall within one of these categories:
- The spouse of the deceased (which includes de facto spouse).
- A child of the deceased (which includes step-children or legally adopted children).
- A dependent of the deceased.
If a client wishes to exclude an eligible person as a beneficiary, consideration must be made as to why the person is being excluded. Solicitors will commonly find that the basis for exclusion is lack of contact. In circumstances where this is accurate, solicitors should draft a clause into the Will outlining the basis of exclusion with supporting evidence, such as an affidavit.
Nonetheless, solicitors have a responsibility to explain that excluding eligible persons from a will may lead to a lengthy and messy Family Provision Application in the future.
Reviewing the will with your client and execution requirements
A draft must always be sent to the client prior to signing. On the day of signing, solicitors should again encourage the client to read the Will, paying close attention to the names and addresses. The final step of the process is one of the most important, execution.
The Will should be signed by the Testator/Testatrix in blue pen (and copies made in black and white so the original is easily identifiable), with two adult witnesses present at the same time. Beneficiaries should not be involved with witnessing the Will.
As a junior solicitor, paying careful attention to these components will develop strong drafting skills and, most importantly, trusting relationships with clients.
If you require assistance preparing a will, please contact the experienced Brisbane family lawyers team at James Noble Law to arrange a free and no-obligation consultation.
We have Qualified and Experienced Family Lawyers Brisbane at James Noble Law.
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