Anyone over the age of 18 who is married or considering getting married and has testamentary capacity may make a will. With the court’s approval, unmarried people under the age of 18 may draft a will. This is especially advised for young people who earn a lot of money through modelling, show business, sports, or endorsements for businesses. 

The Court may also grant a will to someone who lacks testamentary capacity in accordance with Part 2.2 of the Succession Act.

Should I contact the attorney to inquire about the suitability of the intended testator?

Many people with testamentary capacity have granted an enduring power of attorney, so this fact alone shouldn’t be used to cast doubt on the intended testator’s ability to make a testament. Depending on the circumstances of the intended patient, such as whether they are in a nursing home, hospital, etc., it would be wise to first speak with the testator’s treating physician or hospital superintendent to determine whether the client has any type of dementia or has different lucidity periods.

There isn’t a public will registry in NSW, but several private businesses provide will registration services, such as Goldman Lawyers.

• Wills made when the client is seriously ill are especially vulnerable to challenge due to a lack of testamentary capacity. There are some actions you can take to give your will the best chance of overcoming such a challenge:
• Ask the testator directly for the will instructions; if necessary, he or she should be accompanied by a qualified non-family member interpreter.
• To test the client’s testamentary capacity, ask open-ended questions. A good place to start is with the sample questions provided by Kunc J in Ryan v. Dalton in 2017 [ NSWSC 1007 at] 107:
• Who are the members of your family?
• What do you have to offer?
• Whom would you like to leave your assets to?
• Why did you decide to proceed in that manner?
• Make a file note of the inquiries and responses.
• Determine whether any diagnosis, medication, or behaviour may suggest there is cause to be concerned about capacity, if at all possible. Take file notes once more.
• If you can, ask the client’s doctor for advice on testamentary capacity; however, if the situation is critical, make the will right away.

Creating a new will

• If the client does not already have a will or if you do not have copies of their current will, you will need to draft rewriting it. A new will might be the best choice even if you already have a copy of the current one and there are significant changes that need to be made.

Modifying a current will

• Making changes to the existing will is an option if we already have the client’s current will and the changes you need to make are minor. The alterations must be signed by the testator and attested by two witnesses in accordance with section 6 of the Succession Act 2006 (NSW) (“Succession Act”) for formal validity. In anticipation of an application under section 8 of the Succession Act, have the alteration signed by the testator and one witness if a second witness is not available. The date on which the changes are made should be noted.

Codicil

• Making a codicil is another choice if we have the client’s current will. Make sure that any codicil is written clearly, especially in relation to the portions of the will that are revoked and confirmed, so that when the two are read together, they make sense. A codicil should be executed similarly to a will, but if only one witness is present, an application may be made using the dispensing authority set forth in section 8 of the Succession Act.

• With the Will Annexed, one of the beneficiaries—typically a major beneficiary—can apply for Letters of Administration. When that application is approved, the applicant assumes the role of Estate Administrator, with all the responsibilities, rights, and powers of an executor to carry out the deceased’s wishes as specified in his or her will.

What if the will’s designated executor is a minor?

• His or her guardian may receive a limited grant of administration, which will expire when the executor turns 18 years old. The executor can then obtain a grant to finish managing the estate.
• What happens if there are two executors who refuse to cooperate in order to obtain a grant of probate?
• If the executors choose to accept their appointment, their responsibility is to obtain a probate and carry out their duty of care for the beneficiaries. If a disagreement between executors is delaying the application for probate, one of them should inform the other that they intend to do so and invite the opposing administrator to join the process, preferably with the counsel of sane counsel. If the other executor doesn’t respond within the allotted time, the first executor may proceed to file a petition for probate on their own, with permission reserved for the second executor to appear and establish the will.

Before the deceased’s assets can be dealt with does a will need to be granted Probate or Letters of Administration?

• Depending on the type of assets, yes. If the estate is small and the assets include, say, a small bank, credit union, or building society account, these can typically be handled by producing the will to the bank or financial institution, along with the necessary documents for the executor’s identity, the completion of the withdrawal form, and an indemnity in the format required by the institution. In this situation, the executor is personally liable to the beneficiaries for the payment of their entitlements as well as the deceased person’s funeral costs and debts up to and including the value of the estate.
• Payment may be made to the next of kin in cases where there is no will, subject to production of the death certificate, the completed withdrawal form and indemnity as described above, as well as proof of their identity, and they will then be responsible for paying and distributing the money to those who are entitled.
• The person dealing with assets is unable to obtain protection from liability for claims through the publication of statutory notices, which is one drawback of proceeding without a grant of probate or letters of administration. Referring a small estate to the New South Wales Trustee and Guardian, who has additional authority to handle such estates, includes submitting an election to administer the estate, which comes with all the protections of an administration or grant of probate.

When should a request for probation be made?

• According to the Probate Rules, a request for probate must be submitted within six or six months of the testator’s passing. If the application is not submitted within that time frame, the justifications for the delay must be provided in the form of an affidavit, either in its entirety or as part of the executor’s application.

Are the costs associated with probate regulated?

• Up until the grant is delivered by the court, the costs of the legal work involved in obtaining the Probate or Letters of Administration are set at the maximum amount that may be charged. Costs associated with estate administration are deregulated. Before beginning the retainer, practitioners must disclose to their clients their fees, including GST, for work in estates, regardless of whether costs are regulated or not. However, keep in mind that the disclosure requirements do not apply when the total legal costs, excluding disbursements, are not likely to exceed $750 or any other higher amount specified by the regulations.
• One of the two executors I am representing wants to apply for a commission. Can this be accomplished through a court order or an agreement?
• If all of the beneficiaries are sui juris (have legal capacity), they can agree on the amount of commission payment; otherwise, an application for a court order to pay commission must be made at the time the estate accounts are filed and approved.
• According to a Supreme Court ruling in Buckley and Others v. Permanent Trustee Co Ltd (1990) 21 NSWLR 112, if the co-executor had taken part in carrying out the executorial duties, the trustee company may be liable to have its normal rate of commission reduced.

Attorney’s Power- In NSW, is a power of attorney subject to stamp duty?

• No.

Does the Attorney need to register a Power of Attorney before he can sign the contract?

No . However, before dealings involving land, like a Transfer, are signed, it must be listed in the General Registry of Deeds.

Should I give my client’s lawyer a copy of his will?

• A solicitor is not permitted to give the attorney a copy of the will without the client’s consent.
• According to Section 22 of the Powers of Attorney Act, anyone named as the beneficiary of a particular item that is sold, mortgaged, charged, or disposed of by someone acting as an attorney has the same interest in any surplus funds or other estate property as if there had been no such transaction. Therefore, it is wise to inform the attorney if they plan to deal with the principal’s property as the beneficiary of a specific bequest.