02 December 2014

Power of Will – How not to be an Average Wills and Estates Lawyer

Published on 02 December 2014
Nobody wants one, but everybody needs one. Wills and estates lawyers serve an invaluable purpose in our society – yet between familial disputes over a dead relative’s estate, the pressures of interpreting a client’s wishes, and the emotional implications of dealing with life and death, a career in wills and estates can be a challenge.
 
Fortunately, Insights has compiled advice from some leading Wills and Estates experts to ensure your time as a wills and estates lawyer will be one for the headlines, not the obituaries.
 
Remember that Wills and Estates is not just wills and estates
 
Jennifer McMillan is the Wills and Estates Practice Leader at the College of Law Australia. In addition to lecturing in the Wills and Estates stream of the College’s LLM (Applied Law) Program, McMillan is also a member of the Law Society’s Elder Law and Succession Committee and the Society of Trusts and Estate Practitioners, and an Accredited Specialist in Wills and Estates.
 
McMillan says one of the most important aspects of Wills and Estates law is to keep abreast of all neighbouring areas of law – and to understand their impacts on your practice area.
 
“I think that there is a general misconception among lawyers that this is an easy area of law, but it requires a depth of knowledge of case law and legislation, and it cuts across a number of fields including property, taxation, equity and trust law,” she said.
 
“In particular, there is strong demand for practitioners with skills and experience in estate planning, superannuation and family provision litigation.  Another important developing area is elder law, which covers a range of issues including capacity and substitute decision-making, aged care and financial abuse.”
 
Understand it’s not all about money
 
Personal Family Lawyer Managing Director Chelsea Moser says any Wills and Estates lawyer worth their salt will look beyond their client’s tangible assets.
 
“There’s a movement happening in the world in which we are finally beginning to realise that our wealth is far greater than the sum total of the dollars in our bank, brokerage and retirement accounts. In fact, many of us are becoming aware that our intangible assets are much more valuable,” Moser said.
 
“Be sure to…capture, document and pass on not just your [client’s] financial assets, but ALL assets, including the most often overlooked intangible assets, like who you are and what’s important to you.
 
“[You] should have in place an actual process so that when planning is complete, [your client] has created either written or recorded messages to loved ones that pass on values, stories, insights and experience.”
 
By showing your clients you appreciate the value of their sentimental possessions, you are sure to differentiate yourself from your competitors.
 
ABC: always be checking
 
When it comes to the technical application of Wills and Estates, McMillan says the necessity for attention to detail cannot be overemphasised.
 
“Will drafting is an exercise that requires a high level of skill and carries a high degree of risk,” she said.
 
“When mistakes are made, they are often not discovered until after the willmaker has died and can be expensive or impossible to rectify.
 
“Some of the common mistakes that lawyers make when taking instructions for wills include failing to ask the relevant questions to get a proper understanding of the willmaker’s family and assets; failing to anticipate and address what should happen if specifically given assets are disposed of during the willmaker’s lifetime; failing to carefully check the drafting of the will to ensure that it makes sense and accords with the willmaker’s wishes; failing to properly advise in relation to the risk of family provision applications; failing to take adequate file notes to assist with evidence if the essential validity of the will is challenged on the grounds of lack of capacity or lack of knowledge and approval or undue influence, and delay in preparation and execution of the will.”