Q&As

Will drafting: Avoiding common mistakes

Thursday June 8, 2017

Morgan Solomon of Solomon Hollett Lawyers joined Jane Wily to discuss the best ways to avoid common mistakes in will drafting, and provides some expert insights in to broader practice issues such as costs and time management.

You can hear more from Morgan at Junes Wills Drafting and Administration Fundamentals seminar, being held on Friday 16 June at Perth's Parmelia Hilton.

Could you tell us a little bit about yourself, Morgan?
I have been practising in the estates sphere for perhaps 15 years or so. I see the estates sphere as the triumvirate of work revolving around death - the front end (estate and succession planning and drafting) the middle (estate administration, probate and trusts) and the back end (estate litigation and contentious probate).
But law is not my only focus, although I do love the jurisprudence of estate law and the nuances of ownership and transference on assets - prior to going to Law School I studied Art History, and obtained an honours degree in Fine Art from UWA. My honours thesis was on the Influence of Japanese woodblock prints on 19th Century French Impressionism. I have less interest in French Impressionism these days, and am more consumed by postmodern American work and ferrying my kids to football.

Can you explain the premise of your topic and why you think it is important right now? Do you see wills increasingly being challenged for common errors?
Will drafting is part law, part art, part psychology and part crystal ball gazing. It is deeply satisfying work for practitioners because it provides a neat and rewarding certainty that product gives peace of mind and value (unlike say litigation, which rarely delivers joy or value even when you win). It is not simple: the process by which we come to draft a will has become very complex, with increasing demands on practitioners to cross off more and more contingencies and accommodate more and more risk. The recent Calvert v Badenach case from the High Court for example now mandates that drafting a will means also advising on likely challenges to the Will. Add in to that the need to make sure superannuation is accommodated and that family trusts are now commonplace and should be addressed as to control issues, along with more complex family dynamics and the temperature is rising – risk in drafting even the simple will has increased exponentially. In fact, what even is a simple will these days? And how to you determine if one is simple without crossing off all the contingencies first?

Where do you see some of the more common mistakes and challenges for practitioners in this area?
The greatest challenge for practitioners is cost. By which I mean, most lawyers are able to draft a decent will, provided they take enough time and cover all their bases. But that takes time, and therefore increases costs. If you are charging $500 for a will, you still need to spend time crossing every t and dotting every i- and so you may effectively end up with doing 5 hours work. At current charge out rates (having regard to the usual operating costs of firms in WA which are very high) doing that is going to send you broke.
The reality is that more often than not practitioners work to the budget, so can only spend an hour or two at the most on a job that requires double, or tripe or even more time.
The results are less than perfect wills. And as the public’s appetite for litigating wills continues to increase, more and more of these wills are going to be the subject of significant scrutiny by litigants, and a likely increase in practitioners being under the microscope as to their drafting.

What important takeaways would you like practitioner attending your seminar take away from your session?
That complex wills and good estate planning are not the preserve of the wealthy any longer - and that even so called ‘simple wills’ may be the result of a complex process to get there. That there are many tools and processes available to practitioners that if used well should result in a good end product for the client – which means happy clients and satisfied lawyers who carry much less risk.

What are some of the trends and developments that you see in will drafting generally?
A positive trend is the growing acceptance that a client’s position is not just a stock standard off the shelf will, but a raft of intersecting issues, such as balancing gifts during life against gifts after death and competing needs of beneficiaries, accommodating the human aspects – things that acknowledge each person is different and requires different planning at different times in their life.
A negative trend is not going far enough in the exploration of the client’s individual issues, and practitioners drafting down to a budget because they feel constrained by costs.

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