Last updated 15 August 2016

When a will is drawn up, great care must be taken that all formal requirements have been observed in the will and that it is unambiguous. Any challenge to the validity or interpretation of a will involves court action that may be expensive, delay distribution of the estate and cause hardship to the beneficiaries in the meantime. Nevertheless, employing someone with legal knowledge to draw up a will is only a safeguard, not a requirement.

However, if a testator is not going to make a direct gift of all or part of their estate (e.g. by giving the property outright to a person on their death), but wishes to create certain trusts to continue until the happening of a certain event, professional advice is almost essential.

Solicitors are also able to provide advice about how superannuation will be distributed and will give consideration to taxation implications of a person’s succession plan.

A solicitor’s responsibilities

A solicitor is bound by the statutes, statutory conduct rules and ethical considerations to act professionally in the interests of the client. In receiving instructions for a will, a solicitor must be aware of potential conflicts of interest, such as receiving instructions from domestic partners who have had prior relationships or for whom the solicitor has acted in the past.

The solicitor must also be alert to any suspicious circumstances or possible mental incapacity of a testator who is required to have knowledge of, and to give approval to, the terms of the will at the time of its execution. The solicitor’s awareness of such matters is a protection for the testator, the estate, the beneficiaries and also for the solicitor (see the case Clavert v Badenach [2015] TASFC 8 for an illustration of the importance of a solicitor being proactive).