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Will Drafting - todays challenging issues

Published: 23-07-2025 Author: Vicki Ammundsen, Theresa Donnelly Pages: 48
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This book is only available in PDF format

Author: Vicki Ammundsen, Theresa Donnelly,
Published: 23 July 2025
Pages: 48

Introduction

Effective will drafting is not simply an exercise in taking and acting on instructions. Capacity issues remain at the top of the list of practitioner’s thorny wills issues. It is important that wills are fit for purpose and any capacity issues have been cleared off (if necessary by way of a medical).
A key question of practitioners is, have you done enough in this space? This is highlighted in the comprehensive decision in Grbavac v Vujcich1 where the role of the legal advisers was dissected and reviewed at length:2
 
The attendance on 24 September 2012 stands out from other attendances on Mr Joseph. The experience raised concerns for Mr Lucas about Mr Joseph’s capacity to the point where Mr Lucas contacted Dr McDonald. Her understanding of their discussion was that they agreed there should be no will changes, whereas his understanding was that any drastic will change may signify issues regarding capacity.
Given the changes Mr Joseph had already been contemplating up to this date, the discussion with Dr McDonald should have prompted Mr Lucas to make enquiries with Mr Joseph about organising a capacity assessment by a medical expert or for Mr Lucas as Mr Joseph’s solicitor to undertake this task himself in conformity with the principles laid down in Banks v Goodfellow. The road map for a solicitor in Mr Lucas position to follow, which encapsulates the Banks v Goodfellow principles, was set out in Woodward v Smith. As at 2012 this law was well established. However, no such steps were taken. Instead matters continued as before with Mr Lucas making subsequent attendances on Mr Joseph to discuss will revisions.

The Grbavac case involved 3 codicils and an EPA. There was significant criticism of both the responsible solicitor and legal executive concerned in a number of areas in relation to the two types of documents. A very real question you need to concern yourself with is have you done enough to address any red flags, have you covered them off substantially in file notes and can you justify your approach when it is considered under the microscope by a court a number of years later?

This session is not a drafting session. It is a session designed to get you thinking about some of the main pain points around wills and what you can do to navigate them.

Content outline

  • Introduction
  • The real value of wills
  • Capacity and undue influence
  • Mitigating risks
  • Complex issues
  • Complex property considerations
  • Occupational right agreements
  • Miscellaneous
View contents page
AMMUNDSEN Vicki-220 DONNELLY Theresa-169  
Vicki Ammundsen
Vicki Ammundsen Trust Law
Auckland		 Theresa Donnelly Perpetual Guardian Auckland  

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