Will Drafting - today's challenging issues 2025 - On Demand

Package includes:

On Demand Module  l  Electronic booklet  l  PowerPoint Presentation

Package Fee (incl GST)

• $149 - Law Society members and Associate members
• $215 - Non-members

Note: Access to the online files is via your "My CPD" page. If you would like to purchase multiple packages, please contact us here.

On Demand Module

Drafting effective wills can sometimes be a difficult journey to navigate to ensure that the will-maker’s intentions are carried out. Building on the successful 2024 Effective Will Drafting – fitness for purpose? presentation, this webinar will:

• Canvas the matters that need to be explored before a will is drafted
• Explore the importance of correctly identifying the will-maker’s assets and more complex property considerations such as embryos, gametes, and cryptocurrency
• Consider jurisdictional considerations
• Discuss the importance of capturing “non-conventional” relationships and children and remoter issue born through surrogacy and other means
• Review the key developments from contemporary case law to highlight relevant considerations
• Provide practical advice on the importance of retaining adequate records of instructions and advice.

Learning objectives

By completing this module you will:

• Have a better understanding of complex challenges facing will drafting today.
• Be brought up to date with guidance from contemporary cases.
• Take away practical tips and advice to ensure you have the tools to manage will instructions.

Electronic paper 

Authors: 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 Vujcich where the role of the legal advisers was dissected and reviewed at length:

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?

PowerPoint Presentation

These are the slides included in the presentation.