ABOUT WILLS & ESTATES AND ESTATE PLANNING

Wills and estates has rapidly become a large area of practice in part due to the aging population in Australia.

Estate planning lawyers are trusted to give their clients an objective opinion on how they should dispose of their estates – guiding them on the procedure that needs to be followed.

A wills and estates lawyer is also expected to guide their clients through the potential issues and litigation that can arise. 

Our Wills & Estates subjects are the first of their kind, designed for national coverage of the law and practice of wills and estates. 

With a strong focus on practical learning, you will acquire skills to manage the everyday issues you are likely to encounter as a wills and estates practitioner.

The coursework has been absolutely relevant to my daily practice. The material that was provided to us throughout the course is constantly being used by me throughout my practice.

Adeline Schiralli

Consulting Principal, Keypoint Law, Graduate of the Master of Laws (Applied Law) majoring in Wills & Estates

COURSE DETAILS

WEP1 Foundations of Wills & Estates Practice

This subject provides an introduction to the law and practice of wills for students, whether or not they have studied succession at law school. It identifies and analyses the nature of succession law and practice, as well as the relevant legal materials. It covers the legislative and case law requirements governing the validity of wills, as well as taking the testator's instructions and assessing testamentary capacity. There is also an introduction to the skill of drafting valid wills and the method of execution.

  • Framework for succession law
  • Ethics, professional responsibility and liability
  • Proof of death and burial
  • Formal requirements and the dispensing power
  • Taking instructions for and drafting wills
  • Essential validity, including testamentary capacity
  • Introduction to family provision
  • Post-execution: alterations, codicils, republication, revocation and revival
WEP2 Law and Practice of Estates*

This subject covers the principles involved in the administration of estates. It identifies and enables students to apply the legislative provisions applying to testate and intestate estates. It covers the procedural steps for obtaining grants of administration, while taking client instructions and providing appropriate advice to the client. Students draft applications for grants of probate and letters of administration, as well as administer assets and wind up the estate.

Topics
  • Grants of probate and letters of administration
  • Intestate succession
  • Administration without a grant
  • Obtaining instructions for grants
  • Applying for grants of probate and letters of administration and for resealing
  • Liability of the legal personal representative
  • Administration of assets
  • Costing and finalising estates matters
  • Managing a wills and estates practice
WEP3 Construing and Drafting Wills*

This subject is designed to enable students to identify, analyse and apply the principles and rules relating to the construction of wills, especially as they relate to potentially contested estates. It enables students to construe and advise clients on complex issues arising from wills, as well as to enhance further their skills in drafting more challenging wills provisions.

Topics
  • The court of construction
  • Construction suits
  • Principles of construction
  • Rules of construction
  • Admissibility of evidence in the construction of a will
  • Construing gifts
  • Equitable doctrines in the construction of a will
  • Lapse of gifts
  • Drafting issues with blended families
  • Issues in advising on estate planning
  • Court made statutory wills
WEP4 Family Provision*

This subject comprehensively covers the application of the family provision legislation, which now underlies all aspects of will drafting and estate administration. It covers issues of eligibility and the grounds for applying, as well as maintenance, education and advancement in life and the types of orders and evidence required. It also deals with the drafting of the court application and issues involved in the mediation and settlement of proceedings.

Topics
  • Moral claims – the relationship between family provision legislation, testamentary freedom and forced inheritance
  • History and role of family provision legislation
  • Eligibility to make an application
  • Commencement of proceedings
  • Maintenance, education and advancement in life
  • Interlocutory injunctions and interim orders
  • Types of orders
  • Evidence
  • Special and complex issues
  • Release of rights and compromise
  • Self-managed superannuation funds and family provision
  • Mediation and settlement of proceedings
WEP5 Contested Probate and other Court Applications*

This subject enables students to understand and apply the principles in relation to a range of issues which arise in contested and special grants.

It covers the procedures and evidence required for a grant in solemn form, interim and limited grants, revocation of grants, informal and lost wills, assessment of testamentary capacity and the payment of debts and the passing of property. It also deals with costs and estate accounts and commission.

Topics
  • Preventing others from obtaining grants
  • Obtaining a grant in solemn form
  • Interim and limited grants
  • Revocation of a grant
  • Proving an informal will
  • Proving a lost will
  • Issues with testamentary capacity, undue influence and fraud.
  • Costs
  • Authority of the legal personal representative
  • Payment of debts and passing of property
  • Accounts and commission
WEP6 Advanced Issues in Wills & Estates

This subject focuses on a series of advanced issues in wills and estates practice and administration, which are less often encountered in practice. It also provides students with the opportunity to provide client advice on these issues and draft the documentation required.

Topics
  • Testamentary contracts
  • Estoppel and will making
  • Testamentary trusts
  • Particular types of gifts
  • Particular types of beneficiaries
  • Insolvent estates
  • The forfeiture rule
  • Delegation of testamentary power
  • Wills and estates under foreign law
WEP7 Elder Law Intensive

Elder Law is a unique area of practice and growing significance with the increased ageing of Australia's population. It encompasses a wide range of legal issues which are relevant to an elder person from accommodation to social security. This subject introduces students to legal issues which may arise when advising elder people and their carers. It also enables students to develop their skills in researching the benefits available to support the elderly.

Topics
  • Accommodation for the elderly
  • Discrimination and abuse of the elderly
  • Carers – entitlements and benefits
  • Financial planning issues
  • Income support
  • Medical and health care issues
  • Incapacity and disability
WEP00 Capstone Project - Wills & Estates

The Capstone Project is taken as your final subject, as a culmination of the knowledge and skills attained throughout your major. It will allow you to demonstrate your skills in a specialist practice area using real-life scenarios and case studies.

Throughout the intake, you will receive individualised feedback from your lecturer and will also have access to a rich array of skills modules that include guides, samples, and practice exercises for honing your legal skills.

The highlight of the Capstone Project is the final task, where you will prepare a Final Portfolio that demonstrates your legal writing, research, and oral skills.

The subject has four components:

Topics
  • Four short answer questions
  • Two legal writing samples
  • Oral communication (e.g. client interview) assessment held through online conferencing
  • Reflective analysis of oral communication
* NSW, VIC and QLD specific content

 

Estate Planning
EPP1 Foundations of Estate Planning

This subject will provide an introduction to estate planning and some of the estate planning tools and strategies that are available. It will take you through the basics of how to prepare an estate plan. It covers the legislative and case law governing the use of discretionary trusts, superannuation and insurance as estate planning and asset protection tools.

  • Introduction to estate planning
  • Preparing an estate management plan
  • Structures and asset protection strategies with an emphasis on the discretionary trust
  • Social security and special disability trusts
  • Capacity and substitute decision making
  • Superannuation - issues arising during the establishment, accumulation and pension phase of superannuation funds
  • Superannuation and death
  • Insurance
  • Taxation of deceased estates
EPP2 Superannuation

This subject aims to give students a broad and practical understanding of the important aspects of Australian superannuation law, with a particular focus on legal advice and transactions involving self-managed superannuation funds (SMSFs).

Students will be introduced to the various types of superannuation funds, including retail, industry, public sector and small APRA funds. The subject will cover how funds are regulated, how the member entitlements are invested, how their income is taxed, the treatment of contributions to those funds and the payment and taxation of benefits on retirement or death.

Topics
  • Regulatory framework for Australian superannuation and recent changes
  • Establishment and maintenance of SMSFs
  • Concessional and non-concessional contributions
  • SMSF real estate – purchase and lease options
  • Life insurance policies and superannuation
  • Family Law – SMSFs and family trusts
  • Life payments to fund members – pension options and lump sums
  • Superannuation death benefits
  • SMSF real estate – retention for the next generation
EPP3 Business Succession Planning

Proper structuring from the outset when establishing a business is key from a commercial, taxation and estate and succession planning perspective. This subject covers a range of structuring issues which lawyers should have regard to when advising on the implementation of an Australian business structure, lifetime restructure as well as succession planning on retirement, death or disability. The subject focuses on these issues as they relate to Australian family businesses and Australian small and medium-sized enterprises.

Topics
  • The different types of business and investment structures
  • The different laws and rules that apply to each of the structures
  • General taxation implications of each structure
  • Succession planning implications of interests in each structure
  • Drafting the necessary documentation to achieve a client's succession planning objectives
EPP4 Inter vivos & Testamentary Trusts

A trust is a fiduciary relationship or arrangement created by an individual or organisation to gift funds or assets to others via a third-party trustee that will maintain the trust assets for the benefit of the beneficiaries. An inter vivos trust, or “living trust”, operates during the grantor’s lifetime and is governed by a trust deed. Testamentary trusts are formed after the death of the grantor and are governed by the provisions of their will.

Topics
  • Distinguishing between inter vivos trusts and testamentary trusts
  • The set up and use of child maintenance trusts and disability trusts
  • The different roles involved in a trust deed such as settlor, trustee and appointor
  • Effect of Australian Securities and Investments Commission (ASIC), Re; Richstar Enterprises Pty Ltd v Carey (No 6) (2006) 233 ALR 475; FCA 814 on the issue of control
  • Advising trustees and beneficiary on their personal liability
  • Distribution of income and entitlements and anti-tax avoidance measures
  • Drafting a suitable trust for a client
  • Drafting a suitable trust for a client
EPP5 Accounting and Tax for Estates and Trusts

This subject is intended to give students a high-level understanding of some basic tax and associated issues that they may encounter as an estate practitioner. It will focus on income tax (including tax on capital gains).

While estate practitioners often outsource tax work to specialist tax practitioners, it is important that students can identify obvious tax traps, so that they avoid falling into them.

Topics:
  • Capital gains tax consequences when the owner of an asset dies and when the asset passes to a beneficiary of the deceased’s estate
  • The responsibilities of an LPR in respect of a deceased individual’s tax affairs
  • Tax issues that arise during the administration of a deceased estate
  • Tax issues that arise in respect of a testamentary trust
  • Particular issues relevant to non-resident estates and beneficiaries.
EPP6 Applied Taxation Strategies*

This practice-based LLM subject advances on students’ knowledge towards specialised and integrated understandings about applied taxation strategies.

Topics:
  • Appropriate business structures
  • Appropriate investment structures
  • Income
  • Superannuation
  • Investment
  • Tax exemptions and concessions
  • International taxation issues
  • Goods and services tax (GST)
  • Land transfer duty
  • Land tax
  • Capital gains
EPP00 Capstone Project - Estate Planning

The Capstone Project is taken as your final subject, as a culmination of the knowledge and skills attained throughout your major. It will allow you to demonstrate your skills in a specialist practice area using real-life scenarios and case studies.

Throughout the intake, you will receive individualised feedback from your lecturer and will also have access to a rich array of skills modules that include guides, samples, and practice exercises for honing your legal skills.

The highlight of the Capstone Project is the final task, where you will prepare a Final Portfolio that demonstrates your legal writing, research, and oral skills.

The subject has four components:
  • Four short answer questions
  • Two legal writing samples
  • Oral communication (e.g. client interview) assessment held through online conferencing
  • Reflective analysis of oral communication

  • Advisory Board

    Justice Phillip Hallen Judge, Supreme Court of NSW 

    Justice Geoff Lindsay Judge, Supreme Court of NSW, Equity Division

    Mercia Chapman Senior Legal Counsel ,Equity Trustees Limited 

    Dr Stephen Janes Deputy Dean, Western Sydney University 

    Jennifer McMillan Legal Practice Consultant, LawCover, Accredited Specialist (Wills & Estates)

    Bryan Mitchell Principal, Mitchells Solicitors, Accredited Specialist (Succession Law), TEP

    Richard Neal Partner, Teece Hodgson & Ward Solicitors 

    Ian Raspin Director, BNR Partners Pty Ltd 

    Richard Williams TEP, Barrister, Brisbane Chambers

    Michael Willmott SC Barrister 

    Peter Worrall Director, Worrall Lawyers

    Nathan Yii Principal Lawyer, Nathan Yii Lawyers

     

    Teaching Staff

    Renee Bennett Partner, wilson/ryan/grose Lawyers, Accredited Specialist (Succession Law), Committee Member, Queensland Law Society Succession Law Specialist Accreditation Advisory Committee

    Craig Birtles Barrister, Thirteen Wentworth Selborne Chambers

    Marie Brownell Head of Private Client Services, PC Legal 

    Kevin Finn Lawyer, Tucker Partners Legal

    Martin Gorrick Barrister, Frederick Jordan Chambers

    Peter Grinter Special Counsel, Thomson Geer

    Ines Kallweit McKean Park Lawyers and Accredited Specialist (Wills & Estates)

    Ilan Klevansky Barrister, Clashfern Chambers

    Richard McCullagh Legal Director, Patrick McHugh & Co.

    Josephine Pignataro Associate, Diamond Conway

    Carolyn Sparke QC Barrister, Owen Dixon Chambers

    Katelin Whitley Accredited Specialist (Wills & Estates)

    Richard Williams TEP, Barrister, Brisbane Chambers

    Nathan Yii Principal Lawyer, Nathan Yii Lawyers

     

IN STEP WITH STEP

The College of Law is an Accredited Education Partner of STEP, the worldwide professional association for practitioners dealing with family inheritance and succession planning. STEP has over 20,000 members across more than 80 countries from a broad range of professional backgrounds.


One subject in either the Wills & Estates major or Estate Planning major, gives you 30 Diploma Level credits towards STEP membership. If you wish to proceed to Full STEP Membership, with use of post-nominal TEP, you must have a minimum of two years’ relevant experience and successfully complete 120 Diploma Level credits, including the successful completion of any two subjects from the following list:

  • WEP1 Foundations of Wills & Estates Practice; 
  • WEP2 Law and Practice of Estates;
  • EPP1 Foundations of Estate Planning; 
  • EPP2 Superannuation.