9 of 14 DOCUMENTS: Wills Probate & Administration WA/Solicitors' duties/Solicitors' duties/Preparation of wills

Solicitors' duties

Preparation of wills

[40,000] Introduction
Preparing wills for clients is a skilled exercise, one for which solicitors should not be hesitant to charge a reasonable
fee for their high level of professional skill, care and time. The easy availability of will forms at newsagents gives a
false impression that all wills are similar and easy and quick to draw up. However, as a quick perusal of the case law
would show, the risks in preparing a will are ever present.

[40,005] Taking instructions

It is imperative that solicitors see the client at least once when preparing the will: see In the Estate of Tucker [1962]
SASR 99 . Usually there is an initial interview where the client gives instructions; further conferences with the client
may be necessary to ascertain certain aspects of the will and its potential effect. Finally, it is always best if the will is
signed in front of the solicitor.
The initial interview is crucial in enabling the solicitor to establish a rapport with the client and in the process
identify the client and to make an assessment of testamentary capacity. To establish testamentary capacity (see
Banks v Goodfellow (1870) LR 5 QB 549; [1861-73] All ER Rep 47 ) the client must be able to:

(a) know that they are making a will;

(b) know what assets comprise their estate; and
(c) know who has a moral claim on their bounty (assets).
If there is any doubt by the solicitor or anyone else about the testamentary capacity of the will maker it is prudent to
obtain written confirmation of testamentary capacity from at least two medical practitioners, at least one of whom
should be the treating doctor or specialist. This is particularly so if the person is of advanced age or suffering from a
life-threatening illness or condition or is in hospital or a nursing home.
A duly executed will on its face, gives rise to a presumption, in the absence of evidence to the contrary, that the
testator was of competent understanding: Symes v Green (1859) 1 Sw & Tr 401; 164 ER 785 . However, where the
evidence as a whole throws doubt upon the deceased's competency the court must decide against the validity of the
will unless it is satisfied affirmatively upon the evidence as a whole that the deceased was of sound mind, memory
and understanding: Bull v Fulton (1942) 66 CLR 295 at 343; [1942] ALR 221 .
The details to be obtained from the client fall into several categories:

(a) personal details;

(b) details of relatives, prior wills, executors, trustees etc;
(c) list of assets and the location of any title deeds;
(d) liabilities;
(e) will contents;
(f) any other matters which may impact on the will.
Examples of things which may impact on the will are: family companies; discretionary trusts; insurance;
superannuation; taxation; social security (pensions); and potential claims against the estate, including testator's
family maintenance claims or family provision claims from disaffected family members or relatives.
For further details on the type of questions to ask a will-maker see C Rowland and G Tamsitt, Hutley's Australian
Will Precedents , 5th ed, Butterworths, Sydney, 1994 and the guide card "Estate Planning" at [44,205] .

Legislation cited in [40,010] below. LawNow subscribers click through for daily updates and historical versions. (WA)
Administration Act 1903 12, s 8.(WA) Wills Act 1970 s 28(1).

[40,010] Preparing the will

In preparing or drafting a will in Western Australia the will-maker, in addition to the well-known negligence and
other potential liabilities for which precautions must be taken, must be aware of some of the problems that arise from
the pre-1925 or "old order" of assets in the administration of an estate: see the guide card "Estate Administration" at
[36,110] ff.

Payment of debts
If there is a general direction to pay debts this direction must be sufficiently clear to indicate in what way the order of
assets is to be displaced. The intention must be clear if the pecuniary legatee is to be protected against the devisee of
land: see the guide card "Estate Administration" at [36,110] ff. Under the "old" order or the pre-1925 order of assets,
a devisee of land is in a privileged position compared to a pecuniary legatee in that the latter is used first to pay the
debts of the estate.
Sections 8 and 12 of the Administration Act 1903 (WA) attempt to equate realty with personalty for the purpose of
administration. Sections 8 and 12 of the Administration Act 1903 are thus in conflict with the privileged position of a
devisee of land under the "old" or pre-1925 order of assets.

Payment of legacies
In Western Australia the general rule is that general legacies are likely to fail to the extent to which the general
personal estate after the payment of debts is insufficient to meet them.
The order is altered if there is a sufficiently clear expression of intention in the will so that on construction or
interpretation of the will the property to be applied in payment of the legacies can be determined. The will should
expressly or by implication discharge or exonerate the general personal estate. If this is omitted then realty retains a
privileged position in Western Australia under the "old order" of administration of assets: see the guide card "Estate
Administration" at [36,110] .
If the general legacies are followed by a clause leaving the "rest and residue" of an estate without distinguishing
between realty and personalty then the rule in Greville v Browne (1859) 7 HL Cas 689; 11 ER 275 mitigates the
general rule. If the residue has been given in "one mass" then the legacies are paid first with residuary realty
available to pay general legacies but only after residuary personalty has been exhausted.

Secured debts
In regard to secured debts Locke King's Act now found in s 28(1) of the Wills Act 1970 (WA) applies. Section 28(1)
provides that where any property, real or personal, is charged either at law or in equity with the payment of money
then, as between the persons claiming through the will maker, it is that property itself which is primarily liable for
the payment of the debt charged upon it. Section 28(1) may be ousted by a sufficiently clear intention by the
deceased in writing or by deed or by some other document (a note or memorandum in writing, made by, but not
necessarily signed, by the will maker). A contrary intention is not obtained from either a general direction to pay
debts out of the personal estate or out of the residuary real and personal estate or residuary real estate or by a charge
of debts on any such estate, unless signified by some further expression of intention. The intention must refer to
exoneration of the charged property after death and it is insufficient to attempt to rely on mere preparations to
discharge the debt made prior to death.

Protected assets
Protected assets are certain life insurance policies and possibly certain payments out of superannuation funds.
Protected assets are assets protected from claims by certain people, for example, creditors.

Marshalling among beneficiaries

Not all circumstances can be covered by the order of application of assets and resort must be had to old case law that
may produce an unfair result. For instance, if mortgaged real estate is exonerated from its debt (Locke King's Act
ousted) but the residuary personalty is insufficient to meet both the payment of the debt and the payment of general
legacies the shortfall is borne according to the rule in Lutkins v Leigh (1734) Cas t Talb 53; 25 ER 658 . In
accordance with this rule the devisee will not be exonerated out of funds available for the payment of general
legacies unless the legatees have been paid in full. If the mortgage has been paid in full then the general legatees can
marshal against the exonerated property.

Death of will maker prior to execution of the will

The will should be prepared and executed or a draft of the will sent to the will-maker within a very short time period
after instructions are received. Problems may arise particularly, if the will-maker dies before the will is executed:
White v Jones [1993] 3 WLR 730 .
If the will-maker dies after giving instructions for a new will but before it is executed, it is the duty of the solicitor to
inform the personal representatives of the instructions even if this may lead to claims against the solicitor by the
estate and/or by disappointed beneficiaries: see Richardson J in Gartside v Sheffield, Young & Ellis [1983] NZLR 37
at 49 .
The duty of the solicitor extends to following up with the client to ensure that the draft is correct in all aspects and to
arrange for the signing of the will. It is prudent if the will is signed in the solicitor's office or, if that is not possible,
in the presence of a solicitor to avoid potential problems arising, such as beneficiaries witnessing the will.
Many prudent solicitors have the client sign a copy of the draft will (even the notes) made by the solicitor and
attested as if it were the will.

[40,013] Signing the will instructions or draft will

It is sound practice for solicitors to have clients sign any will instructions or draft will and to have the document
witnessed by two witnesses. This aids any claim to prove the will as an informal will: see [24,165.30] .

Legislation cited in [40,015] below. LawNow subscribers click through for daily updates and historical versions. (WA) Wills
Act 1970.

[40,015] Executing the will

It is always preferable if the will is signed in the solicitor's office or presence to ensure that compliance is made with
the formalities in the Wills Act 1970 (WA) . The formalities require that there be two disinterested witnesses present
at the same time as the will-maker signs, marks, and/or acknowledges the will at its foot or end, who sign the will in
the presence of each other and of the will-maker.
Prior to the signing of the will the solicitor should have read over the will to the client and have the client verify that
it is correct. The solicitor should give the client sufficient time to read over the will to affirm that it accords with their
wishes.
The execution of wills in accordance with the requirements of the Wills Act has proved to be so difficult for some
will-makers that changes have been proposed. The Wills Bill 1998 (WA) (currently in draft form) follows the
provisions in a proposed National Model Wills Act produced by the National Committee for Uniform Succession
Laws. These changes, if enacted, will allow the required number of witnesses to be present when the testator or
testatrix signs or acknowledges the will, but that they need not attest and sign the will in the presence of each other.
There would no longer be a requirement that a will be signed "at the foot and end thereof". Some caution should be
exercised in anticipating that Western Australia will join any national legislation, notwithstanding some of the merits
of the proposal of the National Committee for Uniform Succession Laws.
If there is an attestation clause (for instance, if the will-maker signed as a "marksperson" or if the will was read to
them in another language), it is important that the correct attestation clause is used. If it is necessary to use a non-
standard attestation clause, an affidavit annexing a photocopy of the original will should be sworn by the attesting
witnesses as soon as possible after the signing of the will and be retained with the will.

[40,020] Original and copies

The original of the will should be retained by the solicitor in a safe place. It is preferable if the original is retained by
the solicitor and only copies are sent out. Some of the problems that can arise when it is unclear whether the solicitor
retains the original will are referred to by Deane J in Hawkins v Clayton (1988) 164 CLR 539 at 567-9; 78 ALR 69 at
88-90 .

[40,025] Costs
The cost of the time of the solicitor involved in the preparation of a will is often substantial, particularly, if a
testamentary trust is involved.
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