LAW3SSL - Will and Client Letter Assessment 1

Assessment 

• Type: Individual

• Length:

  • Letter: 700 words (+/- 10%)

  • Will: Maximum 1500 words (no minimum)

• Weighting: 20%

  • Letter: 5%

  • Will: 15%

• Due Date: 25 August, 08:00 AEST

Overview & Learning Outcomes

This assessment requires you to draft a Will for a client and write a letter of advice to the same client.

Targeted Course Learning Outcomes (CLOs)

• CLO3: Analyze and apply the law of Wills and Succession, making appropriate choices.

• CLO4: Analyze and apply the law of Wills and Succession, making appropriate choices.

Targeted RMIT Capabilities

• AoL1a: Employ globally inclusive perspectives.

• AoL1b: Actively engage with Indigenous perspectives.

• AoL1c: Contribute to a more sustainable world.

• AoL2a: Actively establish meaningful connections with professional networks.

• AoL2b: Collaborate with diverse teams.

• AoL3a: Employ intellectual agility and knowledge to develop solutions.

• AoL3b: Utilize self-awareness to reflect on learning.

• AoL4: Create and utilize a blend of digital and human skills.

• AoL5: Establish and grow disciplinary knowledge and expertise.

• AoL6: Employ intellectual independence and judgment to engage critically with information.

Assessment Details

Your Tasks

• Draft a Will:

  • Use clear and unambiguous language.

  • Meet all formal requirements.

  • Accurately reflect client instructions.

  • Demonstrate appropriate use of precedents.

  • Correctly identify and describe all subjects and objects of gifts.

• Write a Letter of Advice:

  • Adopt an appropriate style (plain language client letter).

  • Provide accurate information the client can understand.

  • Give correct advice on issues raised.

  • Identify further information or instructions required.

  • Demonstrate thorough research and understanding.

  • Be well-structured and presented.

Specific Instructions

• Client: Mrs. Violet Crumble

• Situation: She is leaving on a cruise and needs a draft will for a conference with you.

• Your Role:

  • Prepare a will based on her Estate Planning Questionnaire.

  • Write a letter to Mrs. Crumble before the meeting.

• Letter Contents:

  • Enclose the draft will.

  • Note any further instructions you'll need from her.

  • Address any issues with her instructions.

• Precedent: Use the firm's precedent for a simple will.

General Instructions

Letters should be clear and courteous:

• (a) Addressing letters: Address to a named individual, if possible.

• (b) Heading for letters: Should be informative, e.g., 'Your Will'.

• (c) Commencing letters: Use 'Dear Ms Smith', not 'Dear Madam'. Use first names if on those terms.

• (d) The body of letters:

  • Be direct and simple.

  • Use a courteous, friendly, and personal tone.

  • Use 'I' and 'me' if on first-name terms.

  • Do not use technical legal language.

• (e) Signing-off: Use a warm sign-off like 'Kind regards' or 'Best wishes'. Sign with your name and status.

Drafting precepts:

• Avoid sexist language.

• Do not use 'Latinisms' (e.g., inter alia ).

• Do not repeat tautologies (e.g., 'will and testament').

• Keep paragraphs short.

• Keep sentences short.

• Avoid archaisms (e.g., aforesaid, hereafter).

The following list of words should not be used:

• Word or phrase — Replacement
• Are in agreement — agree
• As to whether — whether
• At all times — always
• At an early date — soon
• At this point of time — now
• Appendix — attachment
• Annexure — attachment
• Determine — end or decide
• Draw your attention to — point out
• Engrossing — copying (or typing)
• Expire — end
• From time to time — at any time
• In the event — if
• In the near future — soon

Part A: Will

• 1. Personal Details

  • Full Legal Name: Violet Crumble

  • Residential Address: 1 Rose Lane, Alexandria, VIC

  • Phone Number: 0466 123 456

  • Email: Violetcrumb@gmail.com

  • Date of Birth: 1 June 1976

  • Occupation: Teacher

  • Marital Status: Married

• 2. Family Profile

  • Spouse: Tim Crumble

  • Children: Matthew Crumble (16) and Apple Crumble (15)

  • Excluded People/Dependents: N/A

• 3. Executors

  • Primary Executor: Tim Crumble

  • Alternative Executor: Tam Crumble (brother-in-law)

• 4. Prior Will

  • Previously Made a Will: No

• 5. Appointment of Guardians for Children

  • Proposed Guardian: Tam Crumble (if Tim is not around)

• 6. Assets

  • 6.1 Home:

    • Address: 1 Rose Lane, Alexandria, Victoria

    • Registered Proprietor: Violet Crumble

    • Estimated Value: $1.5 million

    • Equity: $1 million

  • 6.2 Investment Property:

    • Address: 3/5 Noel Street, Ivanhoe, Victoria

    • Registered Proprietors: Violet and Tim Crumble (as joint proprietors)

    • Estimated Value: $1.1 million

    • Equity: $500,000

  • 6.3 Bank Accounts:

    • Current Balance: $100,000 (estimated)

    • Type: Savings account/term deposit

    • Owner: Violet Crumble

  • 6.4 Shares:

    • Company: Commonwealth Bank of Australia

    • Estimated Value: $100,000

    • Owner: Violet Crumble

  • 6.5 Other Significant Assets:

    • Description: Several collections of antique emerald brooches

    • Owner: Violet Crumble

  • 6.6 Allocated Pensions: N/A

  • 6.7 Life Insurance: N/A

  • 6.8 Financial Agreements: No

  • 6.9 Business Interests: N/A

  • 6.10 Overseas Assets: N/A

• 7. Proposed Gifts

  • Specific Gifts:

    • To Apple: Emerald Brooch (the one with the rubies) and Superannuation.

    • To Matthew: CBA shares and $100,000.

    • To Tam: 3/5 Noel Street, Ivanhoe, Victoria.

    • To Tim: Superannuation.

• 8. Balance or Residue of Estate

  • Primary Beneficiary: Tim.

  • If Tim dies before Violet: Balance to be shared by whichever children survive.

  • If both Matthew and Apple die before Violet: Balance to go to Tam.

• 9. Minor Beneficiaries

  • Age of Control: The age at which minor beneficiaries will take control of gifted property is not specified; it is left blank in the form.

• 10. Additional Instructions

  • Funeral Arrangements: Violet wishes to be buried in her favourite red dress overlooking the Yarra Valley.

Part B: Superannuation

• Fund Name: UniSuper

• Nominated Beneficiary: Tim Crumble

• A valid binding death benefit nomination reflecting this information has been provided.

Part C: Family Trusts

• Trust Name: N/A

• Trustee(s): N/A

• Appointor: N/A

Part D: Enduring Powers of Attorney

• Financial and Personal Power of Attorney: N/A

Part E: Appointment of Medical Treatment Decision Maker

• Medical Treatment Decision Maker: N/A

Additional Information

• Ownership: The Estate Planning Questionnaire and Instruction Sheet will remain the property of Minerva Law.

  Questions

1. If there is one way to produce a disaster, it is to pick up the pen and launch into the document you are contemplating without any consideration of what needs to be done. Drafting is a logical process and the first step is to consider and then plan what is your object. Whether you use one page, or 20 pages, the object of the exercise is to produce a document that unambiguously sets out what it seeks to do and allowing for changes in the law and the English language accurately implements the object of the document. Drafting is like handwriting we all have our own styles be it florid or pedestrian. There is ultimately only one test of the quality of your drafting; does the document accurately implement the client's instructions in a proper and effective manner?

2. The first consideration is what is the object that is to be achieved. Often this is not immediately clear from the client's instructions. Unless we understand what the client wants to achieve as drafts persons we cannot begin our task on behalf of the client.

Having refined and understood the object to be achieved, the questions then are:

What are the relevant legal principles relating to the task? Can the client's object be carried out legally?
How is the result to be achieved? In many cases there are several alternatives all of which may be appropriate.

By what other means, both inside and outside the document to be prepared, can the client's objectives may be achieved? For instance, often a client's testamentary wishes can be achieved, not by way of his, or her Will, but by using for instance, binding nominations directing superannuation entitlements.

Can the client's object be achieved in one document, or are a series of documents are required?

Rather than addressing the situation by a document, is it easier to get a Court Order? For instance, rather than drafting a complicated Deed of Family Arrangement is it a better proposition to go to the Practice Court and get a Declaration or order?

3. Having addressed the questions of law and structure, the process can then moved on what is needed to achieve your purpose. In testamentary matters, this might amount to preparing a Will, preparing separate documentation in respect of superannuation entitlements and preparing other documents to conform with the requirements of say, a family trust deed by altering appointors and guardians and trustees of the trust.

4. The next consideration is to think about what can go wrong. This is usually in terms of legal difficulties where the law is not clear or helpful, or a proposed administrative arrangement that may be vulnerable in some situations. It is obviously impossible to focus on everything that may go wrong with the client's cherished scheme. However, in some situations it is clear that there will be difficulties; these could be investment decisions, when beneficiaries become entitled to income and capital, or when interests or control will vest. What happens if one branch of the family dies out? What happens if the charitable or benevolent purposes the client wishes to advance become obsolete or ineffective? As long as there is clarity, it is generally better to have addressed these problems even in a clumsy way than not at all

5. Having established what documentation is necessary, it is my practice to then draw a skeleton or outline of what provisions should appear in the will to meet the client's purpose. What do I mean by this? After consideration of the matters I have set out above, one should then list all the relevant paragraphs it is necessary to achieve the object. Not only does this assist in concentrating the

mind as to what is needed in each document and the setting out of the contents in a logical manner, it also directs one to consider what precedent help can be gained by either commonly available precedents contained in publications such as Hutley, or precedents in ones own collection.

6. It is important to remember that a document has to be read and understood by someone else and that a great aid to interpretation is the division of a document into paragraphs and if appropriate, the use of headings at various times in the document to indicate the relevant areas. A skeleton will also concentrate the mind in producing a document which follows a logical progression. Who are the parties? What recitals are needed? What are the important operative provisions of the Deed? What is to happen if the primary purpose, or purposes of the client are defeated by the passage of events? What machinery provisions does one require to implement the objects of the client?

7. If you have a skeleton you will have the paragraphs. Here is a rough guide in the case of a farmers will;

Revoke prior wills.

Appoint trustees. Substitute trustees? Position of widow, life interest?
Children working land, devise?

If so, charge upon that share to ensure payment to other children who won't take such land?
Farming plant, crops to farming child Interest in farming partnership
Pay debts.

Residue.

Powers: farm, raise money, make improvements, employ managers, give and take leases, share farm, buy land, invest, indemnify trustee if loss made (if proper).
Maintenance advancement clause. Guardian.
Funeral.

8. Of course skeletons exist at two levels. One is the drafting of the overall scheme of the document. The other is what elements need to be contained within each specific clause, paragraph or division of the document.

9. Precedents are important and can save an inordinate amount of time. However, they should never be followed slavishly as you may be merely replicating someone else's mistakes, or even worse still, the precedent you are so carefully following may be directed to a set of circumstances, or legislation unknown to you, which do not apply in your client's case. Good drafting and good drafting style can only be acquired with practice. Whilst we are all busy people and need to use precedents, it is important to appreciate that one can only sharpen one's skills with the English language by using the language.

10. In my view, sentences should be kept short and the active rather the passive voice used. Words with Anglo Saxon derivates should be used in preference to those of Latin origin. A straightforward open means of expression in the first person should be used. Remember that the object is to communicate and to do this, it is better to use 21st century language as opposed to 18th or 19th century usage. It is very easy to fall back onto the familiar legalisms and Latin tag

shorthand such as "herewith", "these presents" "mutandis mutandi", "ipso facto" and "en ventre sa mere".

11. No doubt some of the older practitioners present today will remember your archetypal Will of the 1930s which started "This is the last Will and Testament of me" and then proceeded for up to 10 or 12 pages totally devoid of paragraphs, or punctuation. No sign posts to understanding, no indication as to where the said Will was actually going, or wishing to achieve.

12. Remember that your document will have to be read and understood by other people perhaps many years into the future. Perhaps it will need to be considered by a court, the ultimate test! If the Court if it has to construe the document, it will be read as a whole seeking the client's intention as expressed in your words. The court will be looking to the clear and usual meaning of the words and will not impose an unusual meaning on a word, unless the document indicates that the word is being used in a special meaning. Remember that it is counter productive to over define, define only those words that require defining either because of their importance in the will or Deed, or because they have a special meaning in your context. Be consistent with the reference to things and tense; don't use several names for persons or things, unless persons have two capacities, for example a trustee and personal capacity.

13. Remember the rules and guides to construction taught in first year law in Introduction to Legal Method, (or whatever the modern equivalent may be) such
as eiusdem qeneris, that is, where you have a class of words followed by a general statement, the class of words will govern the general statement.
Remember expressio unius - where there is an express reference to one thing or matter, this indicates that references to other things are excluded and the

object of the exercise being the avoidance of implications. Remember noscitur

a sociis - words are known by their neighbours, or contra proferentem. The document will be construed against the party whose document is it.

14. Being creatures of habit (myself included) lawyers often fall for the same mistakes in using comfortable words that roll off the tongue and look good, but may not be a precise as they should be I consider just a few of these in the examples below.
15. The first is the over-use of the word "shall'. In "Modern Legal Drafting", Peter Barton and Richard Cassel, Cambridge University Press 2008 at page 131; they point out that "shall' serves many purposes and list at least 10 different interpretations of the word. The word can be used to impose a duty, to grant a right, to give a direction, to state circumstances, create conditions precedent, or subsequent, to express what will happen in the future, to express intention and to negate, duties, discretions, or rights. Perhaps the most common use of "shall' is to indicate an imperative direction. Rather than to use the word "shall" it may be preferable to use the word "must" in this case. Remember always that the words have to read and understood by someone else.
16. Another example is the use of "and/or'; in Morgan v Thomas 1882 9 QBD 643 at 645 Jessell MR set out the difficulty as follows. "You will find it said in some cases that "or' means "and", but "or'' never does mean "and" unless there is a context which shows that it is used for "and" by mistake. It is not that the word has a different meaning from that which it usually bears, but the context shows that the testator has by mistake used one word for another''.

17. If you were to say 'I give to Richard, my articles of personal or domestic use or ornament', it could be implying that there is a choice and Richard has a choice of one class of object not all three. If your client in fact wants the bequest to pass all three categories the wording should be altered to provide that all my articles of personal and domestic use and ornament shall pass to Richard. One area which can cause particular problems, in this context, is charitable trusts where the use of the word "and" or "or" can mean that the trust is held not only for charitable objects in the strict sense, but also activities which may be benevolent and not charitable. In Re Eades [1920] 2 ch 3553 the words "religious charitable and philanthropic objects" were held to encompass purposes that were not charitable. J.K. Aitken in Piesse elements of Drafting at page 75 points out it would have been more accurate in that case to have said "objects that are philanthropic and also either charitable or religious". Perhaps it is best to say when attempting to use "and" or "or" the temptation is best resisted and more time spent in spelling out exactly what is intended.

18. Be careful with the use of provisos especially if they have been used to provide an exception to a general rule which is set out in the document. An example is Re. Potter [1970] VR352. In that case the provision examined was "I give
devise and bequeath my house property situate [ J to my daughter, [ J for
her own use and benefit absolutely provided that my said son may reside in the house so long as he so desire". In that case, the Presiding Judge held that the son had the right to personally live in the property as long as he wished, but not to the exclusion of the daughter. Perhaps ii may have been better that the Will had been drawn on the basis that:
"I give to my son a right to reside in my said house for so long as he so desires

and upon him ceasing to permanently reside in the said house property then to my daughter for her own use and benefit absolutely'.

19. You should remember the expression "Provided" means that where there is one provision, which is the predominant provision, a proviso will limit or qualify what has gone before. As Butt and Castle say in their book it may be better to use the words "if', or "when", to implement a condition precedent to make it clear in the wording what event it is that brings about the result. One doesn't want to have ambiguity as to whether what is intended is a condition subsequent, where an event occurs that ends a pre-existing right. Remember that those seeking to claim the benefit of a proviso bear the burden of proof of establishing the proviso.

20. It is a good idea to avoid technical words unless one is quite sure what they mean. I always think it is a good idea to consult the legal Dictionary prior to using a fine sounding legal phrase, because more often than not the said phrase does not exactly encompass what you think it does. This also applies to

stating sections of statues in the will or document; check the section, as often the precise meaning of relevant sections is not as you remember. Remember that if technical words are being used they will be interpreted by the court in their strict technical legal sense, unless the document itself stipulates that there is another meaning to the expression.

21. Remember for instance that the word "issue" means any lineal descendant, not only children. With a young person there may be not be any great difference between the effect of using the word "child" as opposed to "issue". However in the case of a 98-year-old great, great grandmother the practical effect of using 'issue' may be another matter entirely. Remember that expressions such as

"my niece or nephew' refer to nieces and nephews of the testator and not the niece and nephews of the testator's partner.

22. Think carefully using the word "survive". This word is generally held to mean to be alive after the occurrence of some other event, or to outlive. However, in some cases the Courts have taken a more liberal view and held in the context of the particular document that, for instance, in the case of children held that "survive" meant in the context of the particular circumstances, not only children who are alive at the time of the death of the testator but also included those who were born subsequent to the testators death.

23. I would now like to consider some facts situations to illustrate the drafting process.
Consider the following provision:-

"/ give to my husband an annuity of 50% of the net value of my insurances'

,quite straight forward?

24. Firstly what is an annuity? The Osborne legal dictionary states an annuity as being:-
"A yearly payment for a certain sum of money. Annuities given by will are pecuniary legacies payable in instalments and where the will directs the purchase of an annuity for life to A, A is entitled to take the purchase money instead."
25. The above clause does not specify what period the annuity is to run for, or to specify the fund to finance, or purchase the annuity, nor does it specify what amount is to be paid in each instalment.

26. The issues raised in drafting annuities are at times complex. Often expert actuarial and taxation advice will need to be obtained. What are the advantages and disadvantages of setting up an annuity in the will? How is the annuity to be funded? Will the principal come out of the estate? and if so will the instalments only be by way of income or income and capital? Will an annuity product be purchased by the estate instead of funding and administering the same through the estate? What is an appropriate annual amount? Who will pay the tax what about inflation? Will the instalments be indexed? If so what index? What happens if the index is discontinued, or is changed in a major way? How long is the annuity to last; for the beneficiarie's life, or for a term of years? Will the annuity affect the pension entitlements of the beneficiary concerned? If the estate is to fund the annuity who gets the unexpended portion of the capital of the annuity (if any)?
27. Perhaps the clause should have been worded as follows:-

" I GIVE an annuity of [amount] per annum to A. This annuity is to be payable

until the death of A [alternative; or for a period of 10 years from the date of my

death, or such shorter period if A should die within 10 years of my death]. It is (
'
my wish but not direction that the said annuity should by paid by monthly instalments into a bank account nominated by A. Such annuity is to be funded out of my residuary estate and held as a separate fund, of such amount which in the opinion of such financial and actuarial advisors as my trustees may employ to advise them, as will be reasonably required to fund the annuity from of my residuary estate. Alternatively my trustees may in their sole discretion purchase the said annuity from a reputable financial institution situated in Victoria. In the event that there is any unexpended capital from the provision of the annuity to A at the time of his death that is payable to my estate I DIRECT that such

unexpended capital shall be paid into my residuary estate and applied
' .

accordingly.

28. Consider now the situation where the testator wants to leave his property Black Acre to his son S. Black Acre is his residence, but it is encumbered by a large mortgage taken out to purchase a factory that will be left to another child. Issues, what does Black Acre consist of? is there more than one title? Is Black Acre owned with anyone else and if so is it joint proprietorship, or tenants in common, or held in some other way for instance, a trust? Do we need a title search, or take testators word for it. What is to be done about the mortgage taking into account section 40 of the Administration and Probate Act 1958. This is the local version of Locke Kings Act in the UK. Section 40 states that, unless stated to the contrary, the burden follows the benefit when an asset is left by will? Should S be required to pay out a loan that was taken out to benefit land he will not take under the will, but which his brother (with whom he does not get on) will receive under the will. Black Acre is the residence of testator and will be exempt from CGT if sold with 2 years of death; the Brother who takes the factory will have an asset that will be liable to CGT. How will this sit with the testator's wishes?
29. One solution is:-

"/ GIVE my residence Black Acre to my son S absolutely, free of all mortgages or loans secured or charged upon the said property and direct that should any mortgage or other loan be secured on that property at the date of my death that the same shall be discharged as a debt of my estate from my residuary estate prior to my said property being transferred to A".

30. Life interests are a perennial problem, perhaps the best way to deal with them is, when in doubt don't. Generations remain locked together in a financial relationship for long periods of time and relations in many cases inevitably become fraught for one reason or another. Numerous issues arise for consideration before the pen is picked up, some, but not all, being: - Is the life interest needed, or is there some other way of approaching the matter? Should it be life interest in the whole estate, or only the real estate? Should the Settled Land Act be attracted, or should there be an immediate binding trust for sale? If the Settled Land Act applies the life tenant will have the power of sale and not the trustees. Will the right be restricted to a right to reside, or merely be a personal licence to live at the property? If only a personal licence, who else can live there? Who is to pay for the periodic maintenance? who will pay for the structural maintained? Who will pay for the rates and other outgoings and the fire insurance? Perhaps a separate fund is needed to ensure that all these items are paid for if the tenant for life is unable to pay them. What property will be the subject of the life interest? Is there a better way of defining "My principal residence at the date of my death"? What if the testator is in a nursing home at the time of his death? If the land is settled land remember that settled land under that Act can only be fee simple title in Victoria, therefore if nursing home accommodation, or retirement village, or supported accommodation is envisaged this must be incorporated into the wording of the will. If supported accommodation and the like is to be allowed, who bears the non-deductable management fees when the tenant for life dies; the estate, or the life tenants estate? Who is to be the trustee? Two are required under the Act, should one be the tenant for life?

31. One approach is :-

" I GIVE any interest I may possess at the date of my death in the property currently known as 5 Black Acre, or such other property that I may reside in at the date of my death as my usual residence to my Trustees upon trust for the use and occupation of my wife Maude during her lifetime, she paying all rates and taxes and other outgoings from time to time payable in connection with my said property and keeping the same in good order and condition (excluding structural repairs) to the satisfaction of my trustees and insured against such risks and for such amounts as my trustees shall reasonably require in an insurance company approved by my trustees and upon the death of my said wife I DIRECT that the said property shall fall into and be dealt with as part of my residuary estate.

In the event that my wife exercises her powers as the tenant for life under the Settled Land Act 1958 I DIRECT that should she wish to purchase another residence as required by that Act that she and my Trustees may place the settlement funds resulting from such sale in such leasehold or other limited titles (including but limited to those titles recognized by the Retirement Villages Act) or in real estate of whatsoever nature or kind situate outside the State of Victoria as they may in their complete and absolute discretion deem appropriate notwithstanding that such holding may result in the loss or diminution of some portion of the capital of this portion of my estate which diminution shall be borne as an expense of my estate and not my wife.

And I further DIRECT that my trustee shall set aside out of my residuary estate such amount as they shall deem appropriate up to a maximum of 5% of my residuary estate and must hold those moneys as a separate fund UPON

TRUST to invest the same in such investments as are allowed by my will and to apply such part of the income and if necessary also such amounts of the capital of the fund as they shall deem appropriate from time to time to meet any shortfall that my wife has in meeting any obligation she may have as the tenant for life of my said property. Upon the death of my wife, or upon the permanent investment of the capital of the life interest in investments other than real estate authorised by my will I DIRECT that the unexpended capital and income of the fund shall be paid into my residuary estate and be dealt with accordingly".
32. Superannuation and life insurances generally are a difficulty; again considering the legal position before proceeding is prudent. To say something like:-
"/ GIVE all my life insurance and key man insurance policies to my cleaning lady S absolutely" may not work. Perusal of the policy documents should disclose who owns the policy. If the policy is owned by the testators superannuation fund it will not be part of his estate unless paid into it by the trustees of the
superannuation fund and absent a current binding nomination the entitlement

will pass at the discretion of the trustees of the superfund. Perusal of any (
binding nomination will on occasion show that it has lapsed, is not correctly executed, or nominates the wrong person and this state of affairs should be fixed. If the policy is a key man policy it may not be owned by the testator, or even be taken out on his life. Key man insurances are often part of a more extended structure to fund and secure buy-outs from business conducted by the testator and the proceeds may well be subject to the terms of the underlying key man agreement that will determine the ultimate destination of the entitlement.
What happens to the superannuation death benefit? Does your client really want the money paid into his estate? He may, it may be earmarked to pay estate
debts or to fund legacies. On the other hand, anything that goes into the estate will be vulnerable to part IV applications. Insurances and superannuation can often be made available quickly and directly to those the testator would want to see supported immediately after his death. The taxation implications are important, dependants receive concessional revenue treatment, persons outside the classes of dependents and family members set out in the Superannuation Supervision Legislation and Regulations may face adverse taxation implications. Perhaps a clause could be such as:-
"IN THE EVENT that any superannuation, allocated pensions or other superannuation related pension death benefits ("death benefits'') I am entitled to as a consequence of my death are paid into my estate I DIRECT the entirety of the same shall be paid to my wife FLORENCE absolutely if she shall survive me by 30 days and if she does not so survive me I DIRECT that the said entitlements shall be paid to such of my children as shall survive me in equal
shares if more than one and if no such child shall survive me then for such other dependants of mine at the date of my death (as that word is defined by section 27A of the Income Tax Assessment Act 1936) in equal shares if more than one and if I shall have no dependants (as that word is defined by section 27A of the
Income Tax Assessment Act 1936) at the time of my death then for such other

of my residuary beneficiaries as are not dependants of mine as defined by that section of the Income Tax Assessment Act 1936".
33. Or in the case of where there is a binding nomination is in place but a safety catch is required;

"I DECLARE that I have executed a binding nomination dated the [date] in respect of my member entitlements and death benefits in the [name]
Superannuation Fund, ("my death benefits") which Fund is constituted by a Deed of Trust made [date] and I DECLARE that in the event that such binding nomination lapses or becomes ineffective for any reason and as a consequence any portion of my death benefit is paid into my estate that the same shall be distributed in the same manner as the said binding death nomination. My trustees shall hold such death benefits upon a separate trust for each of the beneficiaries set out in the said binding death nomination which trust will be governed by the terms set out in Schedule A of the will, save that the beneficiaries under such trusts shall be only such persons as shall be permissible beneficiaries or my dependents as the same are defined in the Superannuation Industry Supervision Act and Regulations. My 'Death Benefit" for the purpose of this my will means a superannuation death benefit as defined in section 307-5(4) and a death benefit termination payment as defined in section 82-130(3) of Income Tax Assessment Act 1997

Assessment Summary and Requirements

This assessment, titled Will and Client Letter , is an individual assignment worth 20% of the course grade. It has two components: a Will , which accounts for 15%, and a Letter of Advice , which accounts for 5%. The word limits are 700 words for the letter and a maximum of 1500 words for the will.

The main objective is to draft a legally sound will for a client, Mrs. Violet Crumble, and write a professional letter of advice to accompany it. The assessment requires demonstrating a comprehensive understanding of the law of Wills and Succession by applying it to the client's specific situation. This includes:

• Drafting the will using clear, unambiguous language that meets all formal requirements and accurately reflects the client's instructions.

• Writing a well-structured letter of advice in plain language that a client can easily understand. This letter must provide correct advice, identify any missing information, and demonstrate thorough research.

The assessment also focuses on developing key professional capabilities, such as intellectual agility, critical judgment, and effective communication, while avoiding technical legal jargon and archaic language.

The Academic Mentor's Step-by-Step Approach

The provided solution outlines a methodical, step-by-step approach that an academic mentor would use to guide a student through this assessment. This process emphasizes critical thinking and planning before drafting, ensuring the final documents are accurate and effective.

1. Planning and Understanding the Objective

The first step is to avoid immediately starting to write. Instead, the mentor emphasizes the need to first understand the client's core objective . In this case, the client, Mrs. Violet Crumble, wants to create a will before she leaves on a cruise. The mentor would guide the student to analyze the client's instructions to understand not just what she wants, but why she wants it. This includes considering her family structure, assets, and proposed gifts, and asking if her wishes can be achieved legally. For example, the mentor would highlight that some of her wishes might be better handled outside the will, such as with her superannuation and life insurance, which have their own legal frameworks.

2. Legal and Structural Considerations

Once the objective is clear, the next step is to address the legal principles and structural requirements . The mentor would prompt the student to think about potential complications and "what can go wrong." This involves:

• Identifying relevant legal principles : The mentor would guide the student to consider specific legal concepts like how assets are owned (e.g., joint proprietors) and the implications of bequests (e.g., what "residue of estate" means).

• Structuring the documents : The mentor would advise creating a skeleton or outline for the will and letter. This acts as a blueprint, ensuring all necessary provisions are included in a logical order. For the will, this skeleton would include sections like personal details, appointment of executors, specific gifts, and the residue of the estate.

3. Drafting the Will and Letter

With a solid plan in place, the student can begin drafting. The mentor's guidance for this phase focuses heavily on clear, modern, and unambiguous language. Key instructions would be:

• Use simple, direct language : Avoid legal jargon, Latinisms, and archaic phrases. The goal is a document that anyone, including a court in the future, can easily understand. For example, instead of "in the event," use "if."

• Be precise and consistent : The mentor would stress the importance of defining words carefully and using consistent terminology. The student would be warned against common pitfalls like the over-use of "shall" or "and/or," which can introduce ambiguity.

• Utilize precedents wisely : While using a firm's precedent is encouraged, the mentor would caution against "slavishly" following it. The student must adapt the precedent to fit the client's specific needs, ensuring it accurately reflects her instructions.

4. Final Review and Outcome

The final stage involves a thorough review to ensure the documents are accurate and complete. The mentor's guidance would ensure all the initial learning objectives were met.

• Will : The final will would accurately reflect Mrs. Crumble's instructions, correctly identify all assets and beneficiaries, and meet all formal drafting requirements. For instance, it would correctly address the joint proprietorship of the investment property and the specific gifts of the brooches, shares, and residuary estate.

• Client Letter : The letter would enclose the draft will, clearly explain its contents in plain language, and note the need for further instructions on the age of control for minor beneficiaries. It would also correctly identify that superannuation and funeral wishes are handled outside the will and do not form part of the legal document.

Through this process, the student not only produces the required documents but also develops a systematic approach to legal drafting. The learning objectives covered include the practical application of succession law, the development of intellectual agility to handle complex client instructions, and the crucial skill of communicating complex legal information clearly and effectively. The ultimate outcome is a set of professional-grade documents that successfully implements the client's objectives.

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