Wills and Probate Legal Advice

This assignment presents a detailed discussion on wills and probate law. It involves analyzing a hypothetical scenario where an individual seeks legal advice regarding their will, focusing on amendments to include grandchildren and addressing potential issues with beneficiary distribution. The assignment delves into the concept of codicils, revocation, and attestation requirements for valid wills, referencing relevant legislation (Succession Act) and case law (Hatsatouris & Or's v Hatsatouris). It also touches upon custody of wills and provides comprehensive legal guidance to the hypothetical client.

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Part A Question 1
‘Annexure A'
MOUNT GRAVATT LAW CENTRE
NEW FILE COVERSHEET
CLIENT’S NAME: Mrs Margaret Rose BROWN
DATE OF BIRTH: 15th _July - 1947
PHONE CONTACT:0408561258
ADDRESS: 8 – 4032 Kipper Street, Chermside
PLACE OF BIRTH: Townsville (Also overseas address)
MATTERS: Will, Power of Attorney to daughters Jane Claire BINGandPearl May GREAT.
OCCUPATION:Pensioner.
FEE CHARGED:FIXED FEE FILE of $550 for will (including Good and Service Tax)

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Part A Question 2
‘Annexure B’
THIS IS THE LAST WILL AND TESTAMENT OF ME
MARGARETROSEBROWN of 8 – 4032 Kippers Street, Chermside Australiain the State of Queensland, a
pensioner makes oath that;
1. I REVOKE all former wills and declare this as my last will.
2. I APPOINT my daughter Jane Clair BING born on 14/3/1990 to be the executor of this
will. My other daughter Pearl May Great born on 16/2/1993 is the immediate alternative.
3. UPON my demise, I Want to be cremated in Australia – ashes to be distributed at
Radcliffe Suttons Beach -where I put my husband after his death.
4. Where professionally viable, my body and/ or remains should be preserved, harvested
and put to scientific use or advancement.
5. I HEREBY ALLOCATE $ 50,000 off my estate should go to the Royal Society for
Prevention of Cruelty against Animals (RSPCA) at 5/6 Napier Cl, Deakin ACT 2600,
Australia.
6. I GIFT my collection of spoons to my friend Edith Sterling at N.A, 6019 Scarborough.
7. I ALLOCATEmy Barnes Memorabilia to the Jimmy Barnes Fan Club at 56 Wynnum
Road, Thorneside.
8. I GIFT and BEQUEATH the remainder of myestate to be equally divided between my
two daughters. If one of them dies, the deceased daughter’s share is to be given to her
surviving sister.
In WITNESS WHEREOF, I have signed this will in the presence of the following, being present at the same
time and signing as hereunder;
TESTATOR (SIGNATURE) WITNESSES(SIGNATURE
MRS MARGARET ROSE BROWN 1. JANELLE STORY
....................................
..................................................... ......................................

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Part A Question 3
‘Annexure C'
IMPORTANT WILL CLAUSE
1. The executor of this will is Jane Clair BING whose mandate is to carry out the terms laid
out in this will upon my demise.She can delegate or sub delegate any authority given
under this will to any third parties of her choice for any such appropriate length(s) of time
so that the intentions of clauses in this will are met. This should be done in accordance to
Section 44 of the Succession Act which empowers the executor to so act.
2. Should the executor become unable to discharge her duties as assigned by this will due to
unforeseen unavoidable circumstances, my second daughter one Pearl May Great on
16/2/1993 shall be the executor of this will in her turn. Her powers are as per the clauses
herein.
3. My Trustee for safekeeping of this will till its rightful use is care of Mt. Gravatt Law
Centre who shall have the responsibility of notifying the executor and beneficiaries of the
existence this will upon my demiseso the intentions expressed herein are realized.
4. Pursuant to Section 22 and 23 of the Transplantation and Anatomy Act an organ
transplant can be conducted for donation to science as intimated in clause (4) of this will.
The terminate position however lies with the executor(s) – as the case will be.
5. Laws governing this will include; The Constitution of Australia, Succession Act, Wills,
Probate and Administration Act, Marriage Act and any other relevantly applicable pieces
of law. All intentions of clauses herein should be fulfilled. No such laws shall be
purported to alter any such clauses unless such clauses bear inconsistencies possible to
render this will unenforceable.
6. The execution of this will can commence immediately upon my death or with
arrangements of the executor, trustee and beneficiaries. For clauses whose prompt
execution can not be effected until after completion of cremation, they can commence
within 30 days or any such time periods as the persons designated herein might deem
appropriate.

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Part A Question 2
‘Annexure D'
POWER OF ATTORNEY
1. I Margaret Rose Brown of 8–4032 Kippers Street, Chermside in the State of
Queensland hereby executes THIS DURABLE POWER OF ATTORNEY for
management of my financial matters.
2. I am going on an overseas cruise to Townsville from 7th July 2017 – 15th September 2017.
This is thus a durable power of attorney and the authority of my Attorney in fact shall not
terminate if I become disabled, incapacitated or in the event(s) of any uncertainty of my
being alive.
3. I appoint my daughter Jane Clair BING as my Attorney-in-Fact when am uncontactable
en vogave. She is to manage any financial issues that come up on my behalf. There are no
special terms. This is in force for the period I will be away.
4. My Attorney-in-Fact can delegate or sub-delegate any authority granted in this will. In so
doing, she can seek the help and advise of trustees listed herein or can choose to act as
she deems appropriate for the realization of intentions of clauses contained in this
instrument.

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5. In execution of this Power of Attorney, the agent shall keep actual record of all financial
outings and innings including other matters that ensue concurrently. She is to exercise be
best judgement within the powers conferred by this document.
SIGNED by the said MARGARET ROSE BROWN
PRINCIPAL (SIGNATURE)
AND ATTESTED IN OUR JOINT PRESENCE
WITNESSESSIGNATURE
1. JANELLE STORY …………………………
(WILLS&PROBATE
ATTORNEY.)
2. …………………… ………………………….

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Part B Question 4
‘Annexure E'
JANELLE STORY,
WILLS & PROBATE SOLICITOR,
MT. GRAVATT LAW CENTRE,
QUEENSLAND.
26TH – JUNE – 2017.
MRS MARGARET ROSE BROWN,
8 – 4032 KIPPER STREET,
CHERMSIDE.
Dear Madam,
REF: ANSWERS FOR QUESTIONS YOU HAD
Concerning the importance of having a Will, this is so that proceeds of an estate are distributed
and dealt with as desired by the owner before demise. A will also appoints executors of an estate whose
mandate runs from time of owner's demise to execution of such will. Having a will also helps prevent
conflicts amongst family and friends over an estate. Inheritance(s), gifts, bequeaths and trusts as legally
predetermined by a transferor(owner of estate) in a will are so awarded thus it is advantageous to have
a will since your intentions will be realized upon your estate and its proceeds when you die.
Section 35 of the Succession Act as read together with Section 92 (a) of the Probate and Administration
Act allows a testator to make distributions in their wills to dependents and beneficiaries who are so
entitled.
A will might be written but not attested. Such a will lacks the privilege of automatic implementation
upon death of its maker. For it to gain effect of enforcement, the beneficiaries will move to the Trial
Supreme court with an application for grant of letters of administration. Where no person claims
interests in an estate(s), the Public Trustee will administer such estates in the interests of the state on
behalf of any rightful beneficiaries. The Supreme Court of Queensland in the Will of Stephen James
Edmondson(Deceased) [2013]i, listened to an application brought before it by Mrs. Muriel Edmondson
and her two other sons(brothers of the deceased). It was under Section 18(2) of the Succession Actii for
a declaration that a document dated 9th March 2012 is a will and for grant of such letters of
administration. The document disposed all property to the persons who sought its enforcement as they
were only surviving siblings of the deceased. His father had predeceased him. It further recorded some

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precatory wishes directing Mr. Edmondson’s body being left to medical science and otherwise being
cremated. It was handwritten with the deceased's name and signature at the bottom.
Under The Wills, Probate and Administration Act and the Succession Act, a person dies
‘Intestate’ when they are deceased without will. In such an event, the Family Court has jurisdiction to
preside over succession matters and will appoint an executor who will be answerable to it pending
determination of the succession suit. Upon finality, such property shall be equitably divided amongst all
the beneficiaries. Where any clauses of a will are disputed, an application can be made to have it struck
as invalid and invite the court’s wide discretion to make orders as it deems fit and just provided in Law
under Sections 61, 62 and 86 of the civil procedure rules.
A will being made is not final. Some of the clauses can be amended by only the transferor.
However, it can also be edited by court of law when it has ambiguities or so as to put it in compliance
with provisions of the Probate relevant provisions of law i.e. the Succession Act– but that will only be
after the transferor is deceasediii.
An example(s) of where a transferor edits her will; is where(as your case is) you want to amend any of
the clauses to include grandchildren and any other possible beneficiaries, incase your financial
situation(s) change, in case you enter into/ end a marriage or social union.iv
Without prejudice, Clause (8) of your will states ‘…The rest of my estate should be equally divided
between my daughters. If one of them dies, the deceased daughter’s share is to be given to her
surviving sister.’ This can be construed to carry a motivation for crime. Hypothetical is where one
conspires to murder another’s so they can get the other’s share as per your will. Considering the fact
that both daughters have children, your will should not be misconstrued as disinheriting some of your
grandchildren!
A Codicil can be used to make minor changes to a will. It is an alternative for revocation. In
making a Codicil, no clauses of an existing will are changed. Instead, the Codicil is attached to the will. It
thus important to always keep them safe since in the event of absence of the Codicil, there is no other
legal evidence of changes to the will. It is noteworthy that a maximum of three Codicils are generally
permitted. In the event of any further rectifications a new will should be prepared with a clause revoking
any previous and duly dated and attested. Revocation is through inclusion of a clause in the updated will
revoking any previous wills. The latest will is the valid will. After revocation you have to attest your new
will for it to be valid. Attestation is where people listed as Witnesses and Testator append their
signatures against their names on the will in each other's presence.v
The New South Wales Court of Appeal used a three stage test in Hatsatouris & Or's v Hatsatouris vi which
asks : Whether there was a document, If the document purports to embody intentions of the deceased
and If the deceased intended such document to operate as their will. The court in granting letters of
administration and declaring the document a will relied on the fact that a week before his death, the
deceased had intended to visit the Public Trustee so as to make his will a legally binding will. He had
intimated this to the siblings and mother before his demise.
There are special rules that concern signing of a will. These are contained in Part 2.1 of the
Succession act One of them is that any of the beneficiaries of a will cannot be present as witness(es)
during attestation. Another condition for validity of a will is that there has to be more than one witness
while attesting. Also, The witnesses cannot be beneficiaries to the estate. It has to conform to all

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expectations of the law. This means that all the clauses of the will must be in such conformity.
Therefore, a testator who appends their sign on a will bearing aforesaid or related inconsistencies with
the law can be deemed to have acted in vain. Such instance might be where an executor lacks capacity
i.e. where they are minors.
Section 54 of the Succession Act provides that custody of a will can be tasked upon: Any person named
in the will as beneficiary, de facto partner(s), any person who would be entitled to the share of the
estate if owner dies intestate, an attorney amongst others. Basically, you have the freedom to decide.vii
In the hope that you will consider the best advise for your friend or yourself, kindly feel free to any share
such concerns with myself for humble guidance.
Cordially,
(signed)
Janelle Story.
Wills and Probate Attorney,
Mt. Gravatt Law Centre.

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i References
[1] In the Will of Stephen James Edmondson [2013] QSC 054
ii[2] Section 18 of the Succession Act provides:
(1) This section applies to documents or a part of a document that;
a. Purports to state the testamentary intentions of a deceased person
iii b. Has not been executed under this part.
(2) The document or the part forms a will, an alteration of the will or a full or partial revocation of a will of a deceased
person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to
the person’s will, or a partial or full revocation of the person's will.
(3) In making a decision on Clause (2) above, the Court may in addition to the document or in part have regard to-
a. Evidence relating to the way in which the document or part was executed
b. Any Evidence of the person’s testaments intentions …
[3] Sec 27 of the Succession Act for example empowers the Court to rectify clauses in a will where it is satisfied that such
clauses do not carry out the testator’s intentions.
iv[4] Section 14 and 15 of the Succession provide that a will can be altered when a person enters into a marriage or civil
union. It has the same effect.
v[5] Section 16 generally allows a testator to make amendments to their will but such alterations might lack effect and
enforceability of the law where there is no attestation.
vi
[6] Hatsatouris & Or's v Hatsatouris [2001] NSWCA 408 [56]
vii
[7] Section 16(6) of the Succession Act as read together with Part 2.5 of the same act now have in force a new provision
requiring an altered and/ or revoked will to be deposited with the registrar. However, any such failure to deposit will not
render the will invalid if it has been duly attested.
‘Annexure F'
To: JANELLE STORY

From: ELIAS JOHN DOUGH
Subject: MEMORANDUM
Date:7TH – JUNE - 2017
cc: M.T GRAVATT WILLS &PROBATE REGISTRY, MRS. MARGARET ROSE BROWN
Purpose: LIST OF ATTACHED DOCUMENTS.
Summary
The purpose of this memo is listing attached document for its recipient to check, appropriately amend
or give directions of changes to be made. Kindly source all necessary addresses and also append your
signatures where highlighted in Yellow as instructed. Return documents for finalization and postage
arrangements.
Background
Hereunder is a list of documents attached and ready for you to check as requested:
1. New File Coversheet (Annexure A)
2. Will of Mrs. Margaret Rose Brown (Annexure B)
3. Mrs. Margaret R. Brown’s Important Will Clause (Annexure C)
4. Mrs. Margaret R. Brown’s Power of Attorney ( Annexure D)
5. Letter to Mrs. Margaret R. Brown with answers to her questions (Annexure E)
Conclusion
Mrs. Brown’s friend in Scarborough one Edith Sterling’s address is not yet available, kindly make plans
of this. Advise on any changes and alterations and return them under my care for appropriate
rectification(s) and postage. Awaiting further correspondence(s).