Brian Hor, Principal, WillWorks®
Jennifer Maher, Special Counsel, Kliger Partners (Vic)
Caite Brewer, Callinan Chambers, Barrister and Angela Cornford-Scott, Director, Cornford-Scott Lawyers (Qld)
Morgan Solomon, Director Solomon Hollett Lawyers (WA)
Rosemary Caruso, Consultant, Tindall Gask Bentley Lawyers (SA)
Maria Dwyer and Christine Schokman, Senior Associates, Ogilvie Jennings Lawyers (Tas)
Andrew Freer, Director and Erin Bedford, Associate, KJB Law (ACT)
Expression of wishes as to burial and commemoration
The client will often wish to give directions regarding how their body is to be disposed of, as well as in relation to their funeral arrangements. These directions are not binding upon their executors, and operate merely as expressions of the client's wishes. Note that, depending on the client's personal financial circumstances as at the date of their death, there may be insufficient funds in the estate to implement the client's wishes as regards their funeral and the disposal of their body.
Often when a client dies, by the time the terms of the will regarding organ donation, burial and commemoration are ascertained, it is too late. Therefore it is imperative that the client informs their intended appointed executors, immediate family, friends and relatives of their intentions before death by other means outside of their will, both orally and in writing.
See Expression of wishes as to burial and commemoration.
Donations of organs
The client may wish to donate one or more of their organs and/or tissues for organ transplantation and/or anatomical, therapeutic, medical or scientific purposes.
The Australian Organ Donor Register keeps a record of a person's donation decision and of the organ and/or tissue he or she agrees to donate. In the event of the client's death, information about their donation decision may be accessed from the Australian Organ Donor Register by authorised medical personnel and provided to their family.
See Donation of organs.
Life estates
Often a client will want to provide for their surviving spouse, but also intend that the whole or part of their estate will become available after the death (or re-marriage) of their spouse for the benefit of their children or other beneficiaries. This is particularly where clients have been divorced and are in a second or subsequent marriage or relationship, but have children from a previous marriage or relationship.
One method of achieving this is to grant a life estate or life interest in the whole or a part of the client's estate in favour of their surviving spouse, with a "remainder interest" which takes effect upon the end of the life interest to the children from a previous marriage or relationship, etc. However, there are some special issues with using a traditional life estate.
A more flexible approach may be to establish a special trust over the relevant asset or proportion of the client's estate.
See Life estates.
Declarations or statements of the deceased outside of the will
Sometimes certain matters should be dealt with outside of the client's will. Such matters will usually be dealt with in separate written documents, which should generally be kept together with (but not attached to) the original will, and for various reasons these matters are best not to be dealt with in the will itself.
See Declarations or statements of deceased outside of the will.