In this episode of the Wills and Transmissions podcast, hostTony speaks with junior lawyer Isabel Ayoub about the critical issue of mental health in the legal profession.
They discuss the unique pressures faced by junior lawyers, the importance of support systems, and the need for a positive approach to well-being.
Isabel shares insights from her experiences and a recent conference on lawyer well-being, emphasising the need for open conversations about mental health and practical strategies for maintaining it in a high-stress environment.
In this episode of the Wills and Estate Transmission podcast, Julia Tutt discusses the importance of understanding and properly executing an enduring power of attorney (EPOA) to manage financial affairs during one's lifetime.
Julia emphasises that EPOAs are crucial for estate planning, especially with the generational wealth transfer underway in Australia.
She advises appointing trustworthy attorneys, preferably more than one to prevent financial elder abuse, and highlights the significance of legal advice to avoid confusion and misuse of the document.
Julia also stresses the importance of open communication within families and staying updated with technological advancements to maintain financial independence and reduce vulnerability.
Continuing the series, in this episode, Tony speaks again with John de Groot, Partner at de Groots, about one of the most important—and often misunderstood—topics in estate planning: capacity.
Capacity issues are increasingly common as our population ages, and they play a critical role in determining whether wills, enduring powers of attorney, and other estate planning documents are valid.
John explains the legal definition of capacity, the “red flags”solicitors need to look out for, and the fine balance between respecting a client’s autonomy and protecting against undue influence or incapacity.
In this episode, we are joined by John de Groot, Partner and Co-Founder at de Groots Wills & Estate Lawyers, to explore the growing impact of artificial intelligence on thelegal profession and estate planning.
Key TopicsCovered:
AI in LegalPractice – Why relying on AI for court submissions has already caused serious issues, including hallucinated cases and quotes.
Court Responses How the NSW Chief Justice now requires affidavits and witness statements to confirm AI was not used.
Practical Uses ofAI – Positive examples of AI in law, from drafting managing director role descriptions to generating detailed executor checklists and even funeral arrangements.
The Human FactorWhy empathy, sympathy, and the trusted adviser role remain irreplaceable despite AI advancements.
Fraud & Identity Theft The rising risks in estate administration, including email scams and beneficiary impersonation, plus practical steps lawyers use to safeguard client funds.
Digital Assets & Cryptocurrency Real-world examples of lost digital wealth and why planning for crypto access is now essential in wills.
Technology & the Courts How COVID-era changes, such as remote witnessing and electronic filing, continue to shape the legal process.
Tony Skinner and Kate Varcoe discuss the complexities of making bequests, particularly to institutions like the Gallery of Modern Art (GOMA).
Kate, a lawyer and future collective member of QAGOMA,explains the different types of bequests, including pecuniary legacies, specific assets, and residue.
She emphasises the importance of clear communication with bequest officers to ensure funds are used effectively and correctly.
Kate also highlights common issues, such as incorrect beneficiaries or unsuitable assets, and advises on the need for careful consideration and specialist legal advice to avoid administrative and tax complications.
In this podcast episode, Tony and Maree Harris discuss theintricacies of contesting a will in New South Wales.
They explore the differences between contesting andchallenging a will, the role of the Supreme Court, the steps involved in contesting a will, the evidence required for a claim, and the importance of seeking legal advice early in the process.
The conversation emphasises the high likelihood of settlingdisputes through mediation and the significance of understanding one's rights and entitlements in estate matters.
Danielle continues the discussion on the importance of andthe legally binding effect of Advanced Health Directives (AHDs), their role in guiding healthcare decisions, family disputes and the conditions under which they take effect.
An AHD must be witnessed by a justice of the peace orsimilar to be valid.
It can include refusals of life-sustaining treatments underspecific conditions, such as terminal illness or persistent vegetative state.
The AHD should be stored securely and shared with trustedindividuals and healthcare providers.
Legal advice is recommended for those unsure about theirdirectives.
Disputes among family members can arise, but the AHD'sdecisions must be followed unless contrary to good medical practice.
Danielle from de Groots Wills and Estates Lawyers explains the importance of Advance Health Directives (AHDs) in Australia, which allow individuals to specify their future healthcare wishes and appoint attorneys.
There are two types: common law and statutory directives,with legal recognition varying by state.
In Queensland for example, only statutory directives arelegally binding.
AHDs differ from Enduring Powers of Attorney, which coverfinancial matters.
They also specify consent or refusal of treatments,including DNR orders and organ donation.
If no AHD is in place, healthcare decisions are made by astatutory health attorney, prioritising the spouse, carer, or close friend.
Danielle defines an AHD as a document that allowsindividuals to express their future healthcare wishes and appoint attorneys to make decisions on their behalf.
Join us on part 2 where we continue this important discussion.
Danni and Jessica emphasises the critical importance of properly documenting financial arrangements, such as gifts and loans, especially within family dynamics.
They discuss the potential legal implications of failing to document these arrangements, including the risk of disputes and costly litigation.
Jessica and Danni advocate for engaging specialist estate planners to ensure that these arrangements align with overall estate plans and to mitigate risks associated with undue influence and capacity issues.
Highlighting the need for independent legal advice and the importance of clear communication among family members regarding financial intentions.
Chapters
00:00Understanding the Importance of Documentation
06:13Engaging a Specialist Estate Planner
11:43Consequences of Poorly Documented Arrangements
In this episode of the Wills and Estates Transmission Podcast, Tony Skinner and Max Williams discuss the intricacies of estate administration following the grant of probate or letters of administration.
They cover essential topics such as the responsibilities of executors, the process of advertising for claims, the payment of executors, property ownership issues, navigating financial institutions, the superannuation claims process, the continuation of legal actions after death, and considerations for leaving assets to not-for-profit organisations.
The conversation emphasises the importance of seeking legal advice to avoid personal liability and ensure proper administration of the estate.
Understanding the Grant of Probate
03:59Executor Responsibilities and Payment
08:05Property Ownership and Inheritance
11:54Navigating Financial Institutions
12:52Superannuation Claims Process
16:44Legal Actions Post-Death
18:55Considerations for Not-for-Profit Bequests
20:44The Importance of Legal Advice for Executors
Chapters
00:00 The Importance of Enduring Powers of Attorney
03:21 Care of Pets and Home Care
06:33 Financial Support for Family Members
08:01 Lifestyle Preferences and Customisation
The conversation discusses the importance of having a will and the consequences of not having one.
It emphasises that a will is not a set and forget document and needs to be updated to reflect life changes. The conversation also highlights the importance of appointing guardians for minor children and the need to consider their changing needs and circumstances.
It mentions cases where wills were not properly updated or were disputed, leading to legal complications. The conversation concludes by stressing the value of consulting an estate planning lawyer for comprehensive and legally binding estate planning.
Chapters
00:00 Introduction and Importance of Updating Your Will
01:37Appointing Guardians for Minor Children
07:58The Value of Consulting an Estate Planning Lawyer
The conversation covers two main themes: leaving specific gifts in an estate and leaving charitable requests in a will.
When leaving specific gifts, it is recommended to leave a percentage of the residue rather than a fixed sum of money, as the value of the estate may fluctuate.
Leaving a residuary gift in percentages ensures that the value of the gift adjusts accordingly.
The conversation also highlights the importance of correctly identifying charities in the will, as different arms of a charity may have different taxation statuses.
It is crucial to reach out to the charity to ensure the correct identification and to discuss any specific gifts that may require special arrangements.
00:00 Leaving Specific Gifts in an Estate
04:02 Identifying Charities in a Will
08:38 Crafting an Estate Plan
TranscriptAction ItemsOutlineUnderstanding Pecuniary Legacies and Residuary GiftsFlexibility in Estate PlanningDistributing Estates to Charities and Tax ImplicationsConsiderations for Cryptocurrencies and Digital AssetsHolistic Approach to Estate PlanningFinal Thoughts and Call to Action 00:18 Difference between Pecuniary Legacies and Residuary Gift
01:27 Making Allowance for Pecuniary Legacies and Specific Gifts
03:24 Distributing Estate via Percentage
04:28 Tax Implications in Estate Planning
06:35 Considerations for Cryptocurrencies
08:33 Complexities of Digital Assets
09:40 Conclusion
Max discusses the potential consequences of not appointing one's own power of attorney, highlighting the difficulty of removing someone once they are in the role.
Tony Skinner inquires about the possibility of appointing multiple attorneys, prompting a discussion on the pros and cons of joint and successive appointments.
Appointing Multiple Attorneys and Their Operational Considerations
Max explains the considerations when appointing multiple attorneys, including whether they should act together or successively.
He emphasizes the importance of appointing a successor in case both primary attorneys lose capacity simultaneously.
Max discusses the need for clear communication among multiple attorneys, especially if they are family members who may not get along.
Tony Skinner asks if appointing a solicitor as power of attorney is advisable, to which Max responds negatively due to the cost and the preference for family or friends.
Conflicts Between Attorneys and Resolution Mechanisms
Max addresses the common issue of disputes between siblings when one is appointed as the attorney and the other is not, leading to concerns about the attorney's actions.
He outlines the process of resolving disputes by applying to the State Tribunal, which can intervene and potentially appoint a public trustee.
Max explains that the Tribunal can review the attorney's actions, including financial accounts, and may decide to remove the attorney if necessary.
Tony Skinner contrasts this with a high-profile case involving different lawyers and financial disputes, noting the public interest in such cases.
Final Thoughts and Wrap-Up
Max reiterates the importance of choosing trustworthy attorneys to avoid disputes and emphasizes the attorney's duty to act in the principal's best interests.
He advises seeking legal advice if concerned about an attorney's actions and applying to the Tribunal for intervention if necessary.
Tony Skinner thanks Max for the discussion and asks for a quick wrap-up.
Max concludes by reiterating the importance of the power of attorney document and the need for careful consideration in its appointment to avoid future disputes.
Max Williams and Tony discuss the concept of a power of attorney, highlighting its importance in appointing someone to manage financial and personal decisions in case of incapacity.
They explain that powers of attorney vary by state, with New South Wales having separate documents for financial and personal matters, while Queensland and Victoria combine them.
They differentiate between general and enduring powers of attorney, emphasizing the need for the attorney to have good character, competency, and capacity.
Pointed out is the importance of consulting a solicitor to ensure the document is properly drafted and witnessed, and they touch on the potential complications and benefits of having a power of attorney in place.
Summary
Power of attorney and its benefits. 0:00
Power of attorney appoints someone to make decisions on your behalf, varying by state.
Types of power of attorney for decision-making. 1:49
Power of attorney types: general (for specific time) and enduring (for incapacity)
Power of attorney types and requirements in NSW. 3:34
Max explains the differences in power of attorney laws across states in Australia.
Selecting a trustworthy and capable power of attorney. 5:23
Tony Skinner asks Max about the qualities to consider when appointing an attorney, including character, competency, and capacity.
Max highlights the importance of finding someone you trust, who has the necessary skills and knowledge, and who is physically able to fulfill the role.
Powers of attorney and their importance. 8:03
Max emphasizes the importance of having a power of attorney in place to avoid headaches for next of kin if someone loses capacity.
Max will cover Power of Attorney disputes in the next episode, as they are inevitable in law.
Max introduces the podcast and welcomes Tony Skinner back to the channel.
Tony mentions a TV show, "Mother and Son," that humorously explores capacity issues.
Max discusses the character Maggie from the show, who might have dementia, highlighting the uncertainty in real-life cases.
The conversation shifts to the legal and medical aspects of determining capacity for making a will.
Legal and Medical Determination of Capacity
Max explains that the court, not the lawyer or doctor, determines capacity for making a will.
He outlines the legal test for testamentary capacity, including understanding the nature of a will, assets, and claims on one's bounty.
Max emphasizes the importance of lawyers making wills even if they suspect the person lacks capacity, to avoid depriving them of their right to make a will.
The presumption of law is that a person has capacity until proven otherwise, and lawyers must avoid biases.
Practical Considerations in Will-Making
Tony raises the issue of relatives guiding the person making the will, complicating the capacity question.
Max advises that instructions for making a will should be taken with the person alone, unless they are elderly and need a support person.
He stresses the importance of hearing the person's unaffected wishes directly.
Tony and Max discuss the impact of language barriers and the need for interpreters, especially when the proposed interpreter is a beneficiary.
Handling Capacity Concerns and Legal Advice
Max insists on removing relatives from the room during the detailed instructions for making a will to avoid contamination of the person's wishes.
He explains the potential risks of not following proper procedures, including the will being contested and the lawyer being sued.
Max suggests that if there are concerns about capacity, the person should be referred to a doctor for a report.
He advises framing the doctor's visit as insurance to protect the will from future contests.
Final Thoughts and Wrap-Up
Max reiterates that capacity is ultimately determined by the court, not by family members or lawyers.
He emphasizes the importance of getting a doctor's report and taking detailed notes as good insurance for potential contests.
Max clarifies that having dementia does not necessarily mean a person cannot make a will.
He concludes by encouraging listeners to subscribe to the podcast and consult with a lawyer for specific legal advice.
Validity Requirements for a Will
Max explains that a valid will must meet two main requirements: formal validity and essential validity.
Formal validity requires the will to be in writing, signed by the person making the will, and witnessed by two people who saw the person sign the will.
Essential validity involves the person making the will having the capacity to do so and knowing and approving the contents of the will.
Tony Skinner asks about the validity of a will made on a napkin, and Max explains that while it can be valid, it must comply with formal validity requirements.
Informal Wills and Their Criteria
Max discusses the concept of informal wills, which can include documents like video recordings or notes on a phone.
Informal wills must meet certain criteria: they must be a document, contain testamentary intentions, and show the person's intention to use the document as their will.
Proving the person's intention can be challenging, especially when the person making the will is deceased.
Tony asks about electronic signatures, and Max explains that electronic signatures are not currently allowed for formal validity.
Special Circumstances and Electronic Signatures
Max mentions a case in Victoria where a will signed with DocuSign was invalid due to the lack of a wet ink signature.
Some jurisdictions allow for witnessing via Zoom or other audio-visual methods, but they still require a wet ink signature.
Tony asks about the possibility of making a will online, and Max explains the process involves preparing the document separately and then witnessing it online.
Max emphasizes that special audio-visual witnessing provisions should only be used in special circumstances, not for convenience.
Wrap-Up and Next Episode Preview
Max reiterates that making a formally valid will is cheaper and easier, but if formal requirements are not met, it's still possible to get the document probated.
Tony thanks Max and asks for a wrap-up, and Max summarizes the importance of formal validity and the potential for informal wills.
Tony mentions that the next episode will cover the topic of capacity in relation to wills.
Tony Skinner and Marie discuss the Supreme Court of New South Wales, where all claims are lodged.
Marie explains the process of commencing proceedings by filing a summons, affidavit, cost affidavit, and a notice of eligible persons.
Tony inquires about the court proceedings, and Marie outlines the typical timeline, including a directions hearing within 28 days.
Mediation is compulsory in this area of law, and 90-95% of matters settle at mediation, with only a small percentage going to a court hearing.
Mediation and Court Hearings
Marie emphasizes the benefits of mediation over court hearings, including faster resolution and lower stress for parties.
Tony notes that barristers are involved in this area of law, not just in criminal cases, and Marie explains their role in contesting a will.
Marie mentions a large case in Western Australia involving mining royalties and many lawyers, highlighting the involvement of barristers in significant cases.
The discussion touches on the factors that influence the chances of winning a will contest, including the relationship with the deceased, financial circumstances, and contributions to the estate.
Factors Considered by the Court
Marie lists various factors the court considers when deciding a will contest, including the relationship with the deceased, financial resources, health circumstances, and contributions to the estate.
Tony and Marie discuss how these factors are argued in court, with Marie explaining the importance of a well-drafted will.
Marie highlights the benefits of proper estate planning to avoid litigation and its associated costs.
Tony asks about the costs of contesting a will, and Marie explains the various fees involved, including court filing fees, hearing allocation fees, and barristers' fees.
Costs and Fees Involved in Contesting a Will
Marie details the different costs associated with contesting a will, including court fees, solicitors' fees, and barristers' fees.
The cost varies based on the complexity of the case, the length of the hearing, and the experience of the lawyers involved.
Tony mentions the Hancocks case as an example of a long-running and costly will contest.
Marie explains that defendants' fees are usually paid from the estate, while applicants may need to arrange funding or pay their own fees upfront.
Defendants and Costs in Will Contests
Marie clarifies that defendants in will contests are often the executors named in the will and that their fees are typically paid from the estate.
Tony and Marie discuss the implications of a defendant's costs exceeding the value of the estate, with Marie suggesting that the plaintiff could be asked to pay an amount into court to cover the fees.
Tony shares a personal anecdote about a friend in a similar situation, highlighting the ongoing nature of such disputes.
Marie advises that in cases where there is nothing left in the estate, the defendants should try to reach an understanding with the plaintiff to avoid unnecessary costs.
Tony Skinner asks Marie about time limits for contesting a will.
Marie explains that time limits vary by state, with New South Wales having a 12-month period from the date of death.
If a will is not contested within this time, an out-of-time application can be made with court leave or the other party's consent.
Factors Affecting Court Decisions on Time Limits
Tony inquires about the likelihood of courts favoring late applications due to overseas residents being unaware of the deceased's passing.
Marie states that court decisions depend on the case, and late applications require sufficient cause.
She emphasizes the importance of timely legal advice to avoid issues with late applications.
Marie notes that if the estate has been distributed, making a late application is very difficult.
Circumstances Justifying Late Applications
Tony asks about the feasibility of late applications if family members find out about the deceased's passing much later.
Marie explains that being a minor at the time of death could be sufficient cause for a late application.
She advises seeking legal advice immediately after the deceased's passing to ensure timely contesting of the will.
Marie reiterates the importance of adhering to state-specific time limits for contesting a will.
Evaluating the Worth of Contesting a Will
Tony asks if contesting a will is worth it.
Marie explains that the worth of contesting a will depends on the circumstances and is assessed on a case-by-case basis.
She mentions that considerations include the size of the estate, the applicant's financial circumstances, and any competing claims.
Marie uses the analogy of an estate being a pie, with the question being whether the applicant can get a piece of it.
Emotional and Financial Considerations
Tony discusses the emotional and financial challenges of contesting a will.
Marie acknowledges the costs involved, including court fees and lawyer fees.
She explains that some solicitors offer contingency cost agreements, which can be beneficial but come with additional fees.
Marie notes that defendant's fees are usually paid from the estate, while applicants are responsible for their own fees.
Funding Arrangements and Legal Advice
Marie discusses funding arrangements that can assist plaintiffs in contesting a will.
She emphasizes the importance of determining the type of agreement with the lawyer based on the specific circumstances.
Marie reiterates that contesting a will involves making an application for provision or further provision from the estate.
She reiterates the time limits for contesting a will in New South Wales and the need for sufficient cause for late applications.