Taking instructions is an area that requires particular focus and diligence. A practitioner must never underestimate the importance of taking full and proper instructions from the client, no matter how "simple" their affairs appear to be.

When interviewing a client, a practitioner must ensure that conflicts of interest do not arise or influence the task of taking proper instructions, particularly as between the client and their prospective beneficiaries and other third parties. Where a family member is present at the client interview when instructions are being taken, it is imperative that instructions are confirmed with the client alone and in the absence of any other person.

"Deathbed wills" require special care to be observed when taking instructions from the client. It will be crucial to prioritise the drafting of that client's will over your other work, so as to minimise any delay and reduce the possibility that the client may die in the meantime.

Having said this, just because a client is very elderly does not automatically mean that you need to procure the signing of an informal will in case the client dies before signing their will (see Howe v Fischer ).

“Alterations to the will before execution” are usually not a major problem where there are clear, accessible and open lines of communication between the practitioner and the client. However, in an imperfect world, the client’s message to make changes to the will may not reach the practitioner. Or perhaps the practitioner receives the changes but due to work pressures forgets to make them to the will before the signing meeting. In these situations, the solutions, and the severity of the consequences if no action is taken, all depend on what happens next in the chain of events.

See Taking instructions.

Practitioners have a duty to carefully and thoroughly ascertain and assess their client's testamentary intentions so as to be able to provide effective solutions to implement them. They may also have a duty to consider the interests of the client's intended beneficiaries, in particular so as to ensure that they do not miss out on their expected entitlements from the client's estate. Further a practitioner should approach the exercise of will drafting from the perspective of serving the best interests of the client.

Confidentiality and legal privilege must always be observed, as during the course of taking the client's will instructions practitioners are likely to become privy to confidential information.

Also, in general practitioners must retain, securely and confidentially, documents to which the client is entitled, for the duration of the retainer and at least seven years thereafter.

Practitioners should also note that there are additional obligations upon them if they undertake to hold the client's will in safe custody. For instance, in Hawkins v Clayton, it was held that solicitors were under a duty as custodian of the original will to take steps promptly to inform the executor of the existence of the will.

See Solicitor responsibilities (ethical requirements).

The costs agreement with the client should set out what the practitioner will need to do in order to properly prepare their will (and any other documentation that the practitioner determines is necessary in order to implement their client's testamentary intentions). This is so the client is able to fully understand the amount of work involved, the degree of expertise required, and therefore the reasons why an appropriate fee is charged.

See Costs and expenses.

Practitioners should enquire of the client as to whether or not they have any old or existing wills. One reason why it is important to review any old or existing wills is that it may be important not to revoke any will that relates to overseas assets that may be out of the jurisdiction of the Australian courts.

There is also the need to consider whether or not an existing will should be physically destroyed (as opposed to being merely revoked by reason of a newer will being made). This may well depend on whether it would be of assistance for the previous will of the will maker to be available in the event of a challenge or family provisions application.

It may also be the case that an existing will of the client is an "informal will" that does not comply with the formal legal requirements for execution and witnessing of a valid will. In particular, it may be that the informal will is not recorded in the traditional way in terms of being in writing on paper — it may be for example a video recording (such as in the case of Mellino v Wnuk and Estate of Wilden (decd) ), or it may even have been typed out on an iPhone (as was the case in Re: Yu ).

See Existing wills.

A client needs to have “testamentary capacity” in order to make a valid will. Note, however, that testamentary capacity does not have to equate to “full mental capacity”. Also it is not the same as “legal capacity”, so that whilst a minor will not have legal capacity, in certain circumstances (such as if the minor is married or the will is made in contemplation of marriage) they can still make a valid will.

Elderly clients or clients suffering from physical or mental disability present special issues as they can “drift” in and out of testamentary capacity from time to time. Ultimately it may be the practitioner’s opinion as to the client's capacity that will be paramount in the event of a legal challenge, especially as regards the client's testamentary capacity at the time they gave their instructions for the drafting of the will.

The testamentary capacity of bankrupt persons may also be an issue, as a will applies to a person’s property owned as at the date of their death (which, in the case of a person who is presently bankrupt, may be well after the bankruptcy has ended). So whether or not there was any entitlement to such property at the date of making their will, a bankrupt person can still make a valid will.

See Capacity of client.

The overriding requirement for a document to be a valid will is that the person who made it actually intended it to form his or her will.

Identifying and implementing the client,s intentions is therefore a crucial exercise, as the practitioner will need to carefully discover from the client exactly what their intentions are, both in relation to all “their” assets (wherever they are held), who they want to include (or exclude) as beneficiaries, and then thoroughly advise the client as to what they can and cannot do via their will.

The courts are continuing to push the boundaries of what it takes to show that the requisite intention existed. In the recent case of Nichol, Re v Nichol , the Supreme Court of Queensland decided that the requisite intention existed so that a draft, unsent sms text message on a mobile phone was held to be a valid will.

See Intentions of the client.

It is important to determine precisely who the client's intended beneficiaries are, both existing (eg, current spouse and children) and contemplated (eg, further children and grandchildren, and alternate beneficiaries in the event that any intended primary beneficiaries fail to take their gift or share of the estate).

It is also important, depending on the nature of the gifts intended to be given by the client and the manner in which they are to be given (such as an absolute gift of legal ownership, or as the primary beneficiary of a protective testamentary trust, etc), that additional information regarding the personal circumstances and characteristics of the intended beneficiary is provided.

It would seem that it is becoming equally important to determine who is not intended to be a beneficiary. In Calvert v Badenach it was held that a solicitor's duty to a testator to give proper effect to the testator's intentions extends to advice about the possibility of a family provision claim against his estate by persons not provided for, but (in the absence of further instructions from the testator) not advice about how to avoid or defeat such a claim by inter vivos transactions with property interests.

Where the intended beneficiary is a charity or charitable institution, it is crucial to ascertain the correct legal description of the charity or institution, the correct branch or office, and the correct form of gift.

Where the client wishes to nominate a solicitor, the solicitor must bear in mind the relevant state or territory legal professional rules.

However, the real skill of an estate planning lawyer lies in gently and sensitively extracting from the client any “special issues” relating to any beneficiaries, such as whether any beneficiaries are considered to be drug addicts, alcoholics, financially irresponsible, and so forth.

See Beneficiaries (identifying existing and contemplated beneficiaries).

The choice of who are the intended executors is important. The executor will have control of administration of the estate until it is handed to Trustees or beneficiaries. The role may last years, potentially decades if the Executor is also the Trustee. Wills often express the appointment of the Executor is also to be the Trustee, and the Executor will be the Trustee unless a specific other appointment is made.

Consideration to the age and competence of the Executor needs to be had. For instance, if the intended executor is already elderly, will they outlive the Testator, and if they do, will they have capacity or the energy to execute the job?

All too often choice of executor is an afterthought of clients, but should be a primary focus.

Additional consideration should be had to the appointment of multiple executors and suitable substitutes incase the institute executor or executors die or are unwilling or unable to act. A person who is unable to endure the often extremely heavy workload of an executor may cause significant costs, delays and frustration to the Estate and the beneficiaries.

If the Testator is the sole director and shareholder of a company additional consideration should be had to who is the executor, because the executor will be able to, and likely must, appoint a new director for the company, unless the company has set in train its own protocol for new directors by resolutions or provisions within the constitution. It is much more common for the Executor to simply appoint a new director under the power expressly provided in s 201F of the Corporations Act 2001 (Cth).

If the Testator appoints a lawyer then the lawyer should ensure that the will contains sufficient protections and ability to charge properly for their services. Clients should be informed that such costs may be high and in the case of the lawyer being trustee for a minor’s trust, may be incurred over many years. Lawyers may wish to obtain the written consent from the Testator to such fees and if possible, a reasonable estimate of prospective fees.