Wills and estate administration is a highly litigated area of law requiring solicitors to be extremely vigilant. A solicitor failing to ask a relatively mundane question can lead to terrible consequences for a client and beneficiaries of a will such as a beneficiary not acquiring their beneficial interest or ending up in a costly litigation.
The law is always changing
Estate laws are constantly changing because of new court decisions and amendments to old provisions. This area of law intersects with multiple other areas of law. For example, an ex-spouse may have a claim to the testator’s estate pursuant to family laws; a beneficiary may not be allowed to acquire corporate interests without having a shareholder vote pursuant to corporation laws; or a beneficiary may end up having to record his/her inheritance as an income for the year causing him/her to pay more capital gains tax pursuant to tax laws.
What to expect from your solicitor
When taking instruction, a solicitor should:
- make detailed notes
- determine and review any previous wills
- determine the assets/liabilities/creditors
- determine locations, identities and any aliases of appointers, trustees and beneficiaries
- investigate the client’s capacity and level of urgency to make a will
- verify the types of title ownership over assets
- advise the client on the rule of ademption and pecuniary legacies
- advise the client to speak to an accountant in relation to tax consequences
- provide advice on the best and worst outcomes
- ask probing questions to investigate the client’s family structure, make sure the estate is solvent, funeral arrangements, superannuation, life insurance, discretionary trusts, companies, enduring Power of Attorney, Advance Health Directives
- advise on minimising risks from potential people having a claim to their estate regardless of being a beneficiary named in the will.
Solicitors are officers of the Court
As an officer of the Court, solicitors have a duty to collect and record all evidence that is relevant, not only evidence which may support the validity of the will, but also evidence that may cast doubt upon it. Solicitors must strive to remove ambiguity from wills and record all instructions and evidence. Where a person lacks testamentary capacity, s.21 Succession Act 1981 (Qld) may allow the Court to authorise a will to be made, altered or revoked on behalf of the incapacitated person.
Cornerstone Law Offices can help you with all yours and your loved ones Wills & Estate planning and Estate Administration of deceased estates. Call us on 1300 267 637 for an initial complimentary consultation (or contact us by clicking here).