ABOUT WILLS and 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 and 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 and Estates

COURSE DETAILS

WEP1 Foundations of Wills and Estates Practice

This subject provides an introduction to the law and practice of wills for students, whether or not they have studied succession law 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 procedures and principles involved in the administration of estates. It identifies and enables students to apply the legislative provisions relating to testate and intestate estates. It covers the procedural steps for obtaining uncontested grants of probate and letters of administration, including 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.

On satisfactory completion of this subject you will understand fundamental theories and practices involved in administration of estates practice, and have an understanding of how to apply this knowledge in professional practice. You will be able to use and explain this knowledge to specialist and non-specialist audiences. Using practice-based analytical and critical thinking skills, you will be able to apply this knowledge to problem-solving and decision-making in practice.

Topics
  • Framework for estate administration applications
  • Intestacy
  • Administration without a grant, small estates and obtaining instructions for estate administration
  • Applying for grants of probate and letters of administration and for resealing
  • Asset realisation, payment of debts and distribution
  • Duties and liabilities of legal personal representatives and rights of beneficiaries
  • Taxation matters, accounts and commission
  • Costing estate matters and managing a wills and estates practice
WEP3 Construing and Drafting Wills*

This subject is designed to enable you 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 you to construe and advise clients on complex issues arising from wills, as well as to further enhance your skills in drafting more challenging wills provisions.

On satisfactory completion of this subject, you will understand fundamental theories and practices relating to the construction of wills, and have an understanding of how to apply this knowledge in professional practice. You will be able to use and explain this knowledge to specialist and non-specialist audiences. Using practice-based analytical and critical thinking skills, you will be able to apply this knowledge to problem-solving and decision-making in practice.

Topics
  • The court of construction
  • Construction suits
  • general principles and specific 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
  • issues in advising on estate planning
  • drafting issues – testamentary trusts, and
  • drafting issues – blended families and vulnerable beneficiaries.
WEP4 Family Provision*

This subject deals with the Family Provision legislation which is by far the most common litigation concerning deceased estates. This subject is relevant to estate planning and estate administration, where the risk of a claim needs to be considered, as well as to litigation itself.

Advice, commencement and defence of proceedings, procedure, mediation and evidence will be considered.

Topics
  • The family provision framework
  • Approach of the court to different categories of applicant
  • Commencement of proceedings
  • Evidence
  • Types of orders
  • Other issues impacting family provision
  • Mediation and settlement of proceedings, release of rights and compromises
  • After mediation: further evidence and the conduct of the hearing
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 and assessment of testamentary capacity. It also deals with costs and estate accounts and commission.

Topics
  • Caveats
  • Solemn form and common form grants; revocation of a grant
  • Applications to impugn the essential validity of a will
  • Interim and limited grants - substantive law and procedure and drafting considerations
  • Lost wills
  • Informal wills
  • Statutory will applications - substantive law and procedure and preparation
  • Costs, commission and passing of accounts
WEP6 Advanced Issues in Wills and 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.

Topics
  • Understanding testamentary succession
  • Testamentary contracts, estoppel and will making
  • Testamentary trusts
  • Particular types of gifts and 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 is growing in significance with the ageing of Australia's population. It encompasses a wide range of legal issues which are relevant to an older person from accommodation to social security.

This subject introduces students to the legal issues which may arise when advising older people and their carers. It also enables students to develop their skills in researching the benefits available to support the elderly.

Topics
  • Introduction to the regulatory framework, delegation and capacity
  • Mandatory substitute decision-making
  • Financial elder abuse
  • Accommodation: Staying at home – carers and assistance
  • Accommodation: Staying with the family – granny flats
  • Accommodation: Moving out – retirement villages and manufactured home parks
  • Permanent residential aged care
  • Discrimination and liability
WEP00 Capstone Project - Wills and 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

While lawyers are not financial planners, understanding the financial issues is critical to estate planning. This subject covers a range of financial planning matters which fall within the ambit of a solicitor, from business structures to insurance matters. Students learn how to apply these financial concepts to the drafting of a client advice and an estate plan.

This subject will cover preparing an estate management plan, setting up structures to protect the estate, taxation of estates, protecting the estate from claims, superannuation, insurance, asset transfer to companies, trustees and other entities and challenges to estate planning strategies.

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 legislation and case law governing the use of discretionary trusts, superannuation and insurance as estate planning and asset protection tools.

  • Introduction to estate planning
  • Capacity and substitute decision making
  • Basics of superannuation
  • Identifying asset structure
  • Triggers for review
  • 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). You will be introduced to the various types of superannuation funds, including retail, industry, public sector and small APRA funds.

Topics
  • The regulatory framework for Australian superannuation
  • Establishment and maintenance of self-managed superannuation funds 
  • Concessional and non-concessional contributions
  • Investments in self-managed superannuation funds and life insurance policies
  • Self-managed superannuation funds - family law, bankruptcy and financial attorneys
  • Lifetime payments to fund members - pension options and lump sums
  • Superannuation death benefits 
EPP3 Business Succession Planning

When establishing a business, proper structuring from the outset 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.

This subject will cover the different types of structures commonly used in Australia (including trusts and companies), issues relating to family farming businesses, transition of wealth during one’s lifetime, buy/sell insurance mechanisms in agreements and estate planning and transition of control on death or incapacity. The subject also touches on taxation and asset protection relevant to business structuring and succession planning.

Whilst EPP3 Business Succession Planning is a subject within the Estate Planning major, it is also relevant for lawyers practising in other areas including corporate and commercial law, wills and estates, property and family law. It will equip students with the necessary understanding to advise on and implement an effective succession plan for family business owners in Australia.

Topics
  • Private companies
  • Unit trusts
  • Family discretionary trusts and other types of structures
  • Family discretionary trusts and succession planning
  • Soft skills, second generation planning and transitioning succession
  • Small business CGT concessions and the small business rollover
  • Buy/sell agreements on death/incapacity
  • Death and incapacity: the use of wills, binding nominations and powers of attorney
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
  • Introduction to estate planning and trusts
  • Specialty trusts – superannuation, disability and minors
  • The trust deed
  • Trustees’ powers and duties
  • Discretionary trusts
  • Trusts and asset protection
  • Trusts and revenue tax law
  • Structuring trust arrangements
EPP5 Accounting and Tax for Estates and Trusts

This subject is intended to give you a high-level understanding of some basic tax and associated issues that you 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 you can identify obvious tax traps, so that you avoid falling into them.

Topics:
  • Roles of LPR and trustee
  • Capital gains tax
  • Deceased's taxation affairs
  • Deceased estate
  • Accounting for trusts
  • Testamentary trusts
  • Non-resident issues
  • Miscellaneous issues
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 and 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 and Estates Practice; 
  • WEP2 Law and Practice of Estates;
  • EPP1 Foundations of Estate Planning; 
  • EPP2 Superannuation.