Writing a letter and drafting a will

Shirley Temple Curley of 1 Buckley’s Island Crescent, Yarram, Victoria, 3971, art teacher, aged 55, instructs you to prepare a basic Will in which she gives the whole of her assets to her partner (“de facto husband”) of 10 years Cary Grant Suave. She appoints him executor, but if he fails to survive her the estate equally to her two children Peter Edward Curley (aged 23) and Prudence Margaret Curley (aged 12), but Prue’s share to her on attaining 21 years. Peter is married with a child aged 2 and if Peter dies his share to his children.

In the unlikely event of Shirley, Cary, Prue and Peter, and his children being killed in the one accident the Estate is to be divided into two parts with one part for Shirley’s sisters Marilyn Mae Morrow and Roslyn Ava Russell in equal shares and they are to be the alternate or substitute executors. The other part to her late husband’s brothers Basil Curley and David Curley who have been good to her since her husband died 13 years ago.

Cary had a good relationship with Peter and Prue. Shirley’s assets are the house at 1 Buckley’s Island Crescent, Yarram (value $550,000); a beach house at 5 Pier Street, Port Albert (value $300,00), (she is the sole registered proprietor of both properties); superannuation with Ed Super in which the nominated beneficiaries are Cary, Peter and Prue equally; and $500,000 invested in shares and bank accounts in Shirley’s name only. The car and personal chattels are owned by Shirley. Cary has no assets other than a few tools.

Shirley asks for the Will to be prepared and sent to her for signature in 3 weeks as she and the family are going away on holidays. Shirley sends to you a basic Will she considers satisfactory, notes and directions on signing Wills which she obtained from Yarram’s ex-leading commercial lawyer before his departure for Melbourne. You are entitled to assume these documents are correct, but you may change the wording of the precedent Will and Will signing instructions as you desire.

Shirley says she will consider changing the Will after she returns from holiday. Please prepare (1) the Will and (2) and letter of advice relating to the Will, including instructions as to Will signing, to Shirley Curley 1 Buckley’s Island Crescent, Yarram, Victoria, 3971 within the next 21 days (week 5 11 March, 2016).

The documents are to be submitted via blackboard using turnitin by 9 am prior to your WPA class on Friday 11 March, 2016. For further instructions see part on next page underlined. You are also to hand the originals of your letter, will signing instructions and Shirley’s Will 1 to your teacher before the commencement of the class. More detailed instructions are on the next page in purple coloured ink.

To assist you in preparing the Will and letter, there are the following documents on the myRMIT studies under ‘Curley’ Assignment:

A – These instructions for this Will making Assignment re Curley

B1_ Old Paul Ryan alternative precedent husband/wife Will which can be adapted to assist in drafting new Will for Shirley

B2 – Precedent husband/wife Will B1 above, but with footnotes referring to legal aspects of Will drafting;

C_ A simple precedent of a husband and wife will which can be adapted by you to assist in drawing the new will for Shirley Curley –used in tute 01, 2016

_ See Practice Manual Notes relating to preparation of Wills on blackboard

D – Precedent instructions when sending Wills to clients for signing and return (you can incorporate this in your letter or just put it on your letterhead and send it with the letter and Will. By all means improve the wording if you so desire).

E – Good student letter enclosing Will for signing by client and return, but note it relates to a different Will and a different fact situation. It is to be used as a guide only and not copied.

In practice when you draft a Will, you usually have a set of precedent Wills and clauses. To some extent I am trying to give you these in B & C above. However, when you draft the Will you can use your own precedents or look at either Hutley’s Wills Precedents or Australian Encyclopaedia of Forms & Precedents etc. However, there is enough in what I have given you to draft the required letter and Will.

In the letter you might point out how the clauses of the Will you have drafted are in accordance with Shirley’s instructions. There are perhaps deficiencies in your instructions from Shirley, but still draft the Will as requested. However, point out details of any further instructions needed . Point out in the letter any problems or other issues you think arise as a result of you drafting the Will as directed by Shirley e.g. Have Shirley’s children been adequately provided for in the Will? Should Shirley have Enduring Powers of Attorney? The instructions for Will signing can either be a separate sheet as per the precedent or form part of your letter to Shirley. The Lecture Notes relating to today’s class on Nature of Wills and the Notes on the class for formalities for Will making may be of assistance. This part of the assessment is worth 12 marks (6 marks for letter including will signing instructions plus 6 marks for Will).

FIRST TASK: Think of a name for your firm and if you are so inclined design your own letter-head. It would be preferable you use your own address and provide telephone numbers and email address where you can be contacted during office hours.

PLAIN ENGLISH

Your firm’s goal of excellence in communication requires use of language which is readily understood by your clients and others you write to in the course of your business. Your style guide is:

Letters should be clear and courteous

Addressing letters

You should always address a letter to a named individual, if possible. If you cannot identify the relevant individual by name within the organization, you may be able to do so by description e.g. ‘Director of Finance’, ‘Managing Partner’.

Heading for letters

Headings for letters should be informative and useful e.g. ‘Your Will’

Commencing letters

Commence letters ‘Dear Ms Smith’ not ‘Dear Madam’ or ‘Dear Sir’. If you are on first name terms with the person you are writing to, use it. There is nothing ‘professional’ in being remote and unfriendly.

In replying to correspondence never use ‘Your letter of 25^th inst. Refers’. Be pleasant try ‘Thank you for your letter of 25 May’ do not add pointless nonsense like ‘whose receipt I acknowledge’

The body of letters

Think before typing and say things directly and simply. Adopt a courteous, friendly and personal tone to clients. If you are on first name terms with a client use ‘I’ and ‘me’ and not the plural ‘we’ ‘us’. Do not use technical legal language in letters to clients.

Signing-off

‘Yours faithfully’ is outdated. ‘Yours sincerely’ is perhaps too remote. Try ‘Kind regards’ or ‘Best wishes’. Sign letters in your own name and, if necessary, an indication of status e.g. ‘Fiona Otis Partner’.

Drafting in general

Avoid sexist languageg. replace ‘workman’ with ‘worker’. In the materials for the Tutorial Exercises I have endeavoured to avoid the use of sexist language and stereotypes. However, where a woman is placed in a ‘stereotyped gender situation’ (e.g. as a dependent wife) it is sometimes inappropriate to change the way in which the situation is presented because it is, in fact, a typical example in the setting of that particular legal problem.

Do not use ‘Latinisms’g. inter alia, but prima facie might be acceptable.

Do not thoughtlessly repeat tautologiesg. ‘ will and testament’, ‘fit and proper’, ‘agree, acknowledge and confirm’

Keep paragraphs short: one point per paragraph is a good idea.

Keep sentences short: try and keep within 25 words per sentence.

Avoid archaisms and unnecessarily difficult language.

The following archaisms should never be used. They do not need to be replaced. The context should do the trick quite adequately:

Abovementioned, aforesaid, the said, hereafter, hereinafter, thereunder, hereby, whereas, herewith, thereby.

The following list of words should not be used which may need replacement:

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

Expire end

From time to time at any time, at

that time, at

the relevant

time

in the event if

in the near future soon

instrument document

it would be appreciated if please

on account of because of

other than apart from or expect

owing to because or since

peruse examine

photostat copy photocopy

purports claims

pursuant to under or in accordance with

read through read

read over read

set a limit on limit

shall must

the provisions of section… section

timeous timely

terminate end

together with with

we should be pleased if

THIS IS THE LAST WILL AND TESTAMENT of me <<full name>> of <<address>> in the State of Victoria, <<occupation>>.

I REVOKE all prior testamentary dispositions.

I APPOINT my <<husband/wife>> <<full name>> (called “my Trustee” and which expression shall include the trustee or trustees of my estate for the time being whether original substituted or additional) to be the executor of my Will and trustee of my estate. If my Trustee shall refuse or be unable to act or unable to continue to act or predecease me or die before my estate is distributed or for any reason fails or ceases to act as my Trustee I APPOINT <<full name and relationship>> to be the executors of my Will and Trustees of my estate.

I GIVE all my real and personal property not otherwise disposed of by my will to my Trustee UPON TRUST for sale with power to postpone the sale of the whole or any part of the said property (including property of a wasting nature) and from the proceeds of sale I DIRECT my Trustee to pay all my just debts funeral and testamentary expenses and all taxes and duties charged on my estate or occasioned by my death and the balance remaining is herein called “my residuary estate”.

[amend clauses to suit circumstance]

I DIRECT my Trustee to PAY OR TRANSFER my residuary estate:

4.1 to my husband/wife <###>;

4.2 or if he/she dies before me then to such of my child or children as shall survive me and if more than one in equal shares;

4.2 or if he/she dies before me then to such of my child or children as are living at my death and attain the age of <###>years and if more than one in equal shares;

4.3 and if any child of mine dies before me leaving a child or children surviving me then that child or those children (being my grandchildren) shall take and if more than one equally the share in my residuary estate my child so dying would otherwise have taken.

4.3 and if any child of mine dies before me leaving a child or children surviving me then that child or children (being my grandchildren) who attain the age of .<###> years shall take and if more than one equally the share in my residuary estate that my child so dying would otherwise have taken.

IF all of the foregoing trusts in respect of my residuary estate shall fail for want of a beneficiary then my Trustee shall hold my residuary estate UPON TRUST to divide it into two equal parts and to dispose of them as follows:

a) TO PAY OR TRANSFER one (1) of such parts to such of them <<insert>> and <<insert>> as shall survive me and if more than one in equal shares absolutely;

b) TO PAY OR TRANSFER the other of such parts to such of them <<insert>> and <<insert>> as shall survive me and if more than one in equal shares absolutely.

IF the trusts declared in respect of one of the said parts shall fail for want of a beneficiary such part shall be held upon the trusts declared in respect of the other of the said parts.

MONEY liable to be invested under this Will may be invested pursuant to the provisions of Part 1 of the Trustee Act 1958.

I DECLARE that my Trustee shall have the power to apply the whole or any part of the income or capital of the vested or contingent share of any beneficiary in or towards the advancement maintenance education welfare or benefit in life of such beneficiary without seeing to the application thereof it being my intention that the welfare of any such beneficiary shall be the paramount consideration of my Trustee.

IN WITNESS whereof I have hereunto set my hand this day of Two Thousand and .

SIGNED by the abovenamed Testator in our presence and attested by us in the presence of the Testator and each other.

…………………………………………….

Witness 1: ……………………………. Witness 2: ………………………………

(signature) (signature)

……………………………………………. ……………………………………………..

(print name in full) (print name in full)

…………………………………………… …………………………………………….

(occupation) (occupation)

………………………………………….. …………………………………………….

(address) (address)

LAST WILL AND TESTAMENT OF

PAUL L RYAN & ASSOCIATES,

LEGAL PRACTITIONERS,

UNIT 2, 33 JEFFCOTT STREET

WEST MELBOURNE VIC 3003

TEL: 957 0253

FAX: 9670 1005

REF: #

CLIENT FILE (Curley) WILL (sample only husband / wife will)

THIS IS THE LAST WILL AND TESTAMENT of me [full name in CAPITALS and bolded] of [ address ] in the State of Victoria [ occupation ].

I REVOKE all prior Wills or Testamentary Dispositions made by me and I DECLARE this to be my last Will.
I APPOINT [ full name, address and relationship of spouse ] (called my Trustee) to be Executor and Trustee of my Estate but should my said Trustee be unable or unwilling to act or die before my Estate is distributed I APPOINT [ full name and addresses of adult children ] to be Executors and Trustees of my Estate.
SUBJECT to the payment of all my just debts funeral and testamentary expenses including in any such expenses the costs of proving my Will and winding up my Estate and all Probate, Estate and other duties payable in respect of my Estate or in consequence of my death I GIVE the whole of my Estate both real and personal of whatsoever nature and wheresoever situate to my spouse name] absolutely provided that my said spouse shall survive me for the period of thirty days.
In the event that my said spouse predeceases me or fails to survive me for the said period of thirty days I GIVE, DEVISE AND BEQUEATH the whole of my Estate as aforesaid to such of my children as shall survive me and attain the age of 18 or 21 years and if more than one as tenants in common in equal shares.

Testator:……………………Witness 1: ……………….. Witness 2:……………

Should any of my children fail to attain a vested interest leaving child or children who shall survive me and attain the age of 18 or 21years then and in such case such child or children shall take and if more than one equally between them the share and interest in my Estate which his her or their deceased parent would have taken had such parent attained a vested interest.
I DECLARE that my Trustee shall have the power to apply the whole or any part of the income or capital of the vested presumptive or contingent share of any beneficiary hereunder in or toward the maintenance, education, welfare or benefit in life of such beneficiary without seeing to the application thereof.

IN WITNESS whereof I have hereunto set my hand this ………. day of ………. Two thousand and fifteen.

SIGNED by the Testator in our presence and attested by us in the presence of the testator and each other:

………………………………………

Testator

Witness 1………………………….. Witness 2 …………………………………

Full name: Full name:

Occupation: Occupation:

Address: Address:

Paul L Ryan & Associates

ABN 87 781 668 149

Legal Practitioners

Level 2, 470 Collins Street

MELBOURNE VIC 3000

Telephone: 9620 3282

facsimile: 9614 7433

INSTRUCTIONS CONCERNING SIGNING OF WILL

Read the Will carefully. You should ensure that it sets out your wishes accurately and full names are accurately recorded.

The Will should be signed in front of two independent adult witnesses. All should be pre4sent at the same time and sign in the presence of all. The witnesses must not have any possible interest under the terms of the Will. Similarly the spouse or partner of a potential beneficiary should not be a witness.

Date your Will in the space provided, and sign where indicated in the presence of both witnesses, namely at the foot of page one and also on page two. You should all use the same pen. We suggest that you use a blue pen.

Normal signatures should be used.

Both witnesses should print their names, addresses and occupations on page two where indicated.

Any minor alterations to the Will should be initialled by you and both witnesses in the margin next to such alterations. For major changes to the Will please telephone this office.

It is important that nothing be pinned or clipped to the Will and that it is not marked in any way as any signs of annexures may be queried by the Probate Office resulting in additional expense in dealing with their requisitions.

The duly signed Will should be returned to this office promptly for checking.

THIS IS THE LAST WILL AND TESTAMENT of me <<full name>> of <<address>> in the State of Victoria, <<occupation>>.

I REVOKE all prior testamentary dispositions.[1]

I APPOINT my <<husband/wife>> <<full name>> (called “my Trustee” and which expression shall include the trustee or trustees of my estate for the time being whether original substituted or additional) to be the executor of my Will and trustee of my estate. If my Trustee shall refuse or be unable to act or unable to continue to act or predecease me or die before my estate is distributed or for any reason fails or ceases to act as my Trustee[2] I APPOINT <<full name and relationship>> to be the executors of my Will and Trustees of my estate.

I GIVE all my real and personal property not otherwise disposed of by my will to my Trustee UPON TRUST for sale with power to postpone[3] the sale of the whole or any part of the said property (including property of a wasting nature) and from the proceeds of sale I DIRECT my Trustee to pay all my just debts funeral and testamentary expenses and all taxes and duties[4] charged on my estate or occasioned by my death and the balance remaining is herein called “my residuary estate”.

[amend clauses to suit circumstance]

I DIRECT my Trustee to PAY OR TRANSFER my residuary estate:

4.1 to my husband/wife <###>;

4.2 or if he/she dies before me then to such of my child or children as shall survive me and if more than one in equal shares;

4.2 or if he/she dies before me then to such of my child or children as are living at my death and attain the age of <###>years and if more than one in equal shares [5]

4.3 and if any child of mine dies before me leaving a child or children surviving me then that child or children (being my grandchildren) who attain the age of <###> years shall take and if more than one equally the share in my residuary estate that my child so dying would otherwise have taken.

IF all of the foregoing trusts in respect of my residuary estate shall fail for want of a beneficiary then my Trustee shall hold my residuary estate UPON TRUST to divide it into two equal parts and to dispose of them as follows:

a) TO PAY OR TRANSFER one (1) of such parts to such of them <<insert>> and <<insert>> as shall survive me and if more than one in equal shares absolutely;

b) TO PAY OR TRANSFER the other of such parts to such of them <<insert>> and <<insert>> as shall survive me and if more than one in equal shares absolutely.

IF the trusts declared in respect of one of the said parts shall fail for want of a beneficiary such part shall be held upon the trusts declared in respect of the other of the said parts.

MONEY liable to be invested under this Will may be invested pursuant to the provisions of Part 1 of the Trustee Act 1958.

I DECLARE that my Trustee shall have the power to apply the whole or any part of the income or capital of the vested or contingent share of any beneficiary in or towards the advancement maintenance education welfare or benefit in life of such beneficiary without seeing to the application thereof it being my intention that the welfare of any such beneficiary shall be the paramount consideration of my Trustee.

IN WITNESS whereof I have hereunto set my hand this day of Two Thousand and .

SIGNED by the abovenamed Testator in our presence and attested by us in the presence of the Testator and each other.

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Writing a letter and drafting a will

Writing a letter and drafting a will

INSTRUCTIONS CONCERNING SIGNING OF WILL

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