Wills & Succession

This section includes literature on trusts and estate planning.

Brankov, Amelia K and Sherri Cohen, 'Selling and Consigning Artwork in The Era of COVID-19: Legal Tips for Collectors to Keep in Mind' (2021) 160(4) Trusts & Estates 54-56
Abstract: Auction houses and other art vendors have adjusted their business practices to address some of the logistical hurdles caused by the COVID-19 virus. Here's how the auction houses have adjusted their practices to facilitate the consignment process and sales. We also provide some legal tips for collectors to keep in mind when purchasing artworks during COVID-19.

Brown, Lucinda and Alexander Morgan, 'A Welcome Update?' 217(October) Trusts and Estates Law & Tax Journal 4-11
Abstract: Comments on proposed temporary legislation to allow wills to be witnessed by video conference without witnesses' physical presence. Discusses best practice for executing such a will, and for solicitors to show compliance with their obligations. Examines disputes which may arise about such wills.

Browne, Darryl, 'Elder Law and Succession' (2020) 66 LSJ: Law Society of NSW Journal 99-100
Abstract: Home-made administration of home-made will - allegation of testamentary fraud - bank acts to prevent elder abuse - Australian Financial Complaints Authority is constitutionally valid - COVID-19 affected decision - leave to retract renunciation - apportionment of dividend.

Horton, David and Reid K Weisbord, 'COVID-19 and Formal Wills' (2020) 73(May) Stanford Law Review Online (forthcoming)
Abstract: Most Americans do not have a will. The reasons are easy to understand. Thinking about death is unpleasant, and hiring a lawyer is expensive. However, as COVID-19 sweeps through the country, some Americans urgently need an estate plan. Unfortunately, U.S. law makes it difficult to create a will during crises like these. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a 'formal' will executed in compliance with the Wills Act. Under this ancient statute, wills must be written, signed by the testator, and also witnessed by two people who were present at the same time. As journalists and lawyers are recognizing, the Wills Act's insistence that the parties physically occupy the same space creates unprecedented roadblocks during a time of widespread quarantine and shelter-in-place orders. Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act's stuffy norms, four states have recently authorized electronic wills. This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize the requirements for creating a will. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores four ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, enacting electronic will legislation, or temporarily suspending certain elements of the Wills Act during public health emergencies.

Jackson, Kym, 'Law in the Time of COVID-19: Changes in Succession and Probate Practice' (2020) 42(6) Bulletin (Law Society of South Australia) 16-17
Abstract: Before the earliest most tentative warnings had sounded in relation to the COVID-19 pandemic, I had taken the pre-emptive precaution of moving to a regional area with my family. This proved to be sound and - at a personal level at least - the worst consequences of the virus were avoided. But complete avoidance was to remain elusive: legal services have been affected (though certainly not as much as some other businesses), as well as the way we deliver those services.

Jacobs, Johann, 'A COVID-19 Health Check for the Wills Act: Law of Succession' (2020) 20(6) Without Prejudice 38-40
Abstract: Every aspect of life has been affected by COVID-19. Estate planning is no exception, especially the execution of wills. The stark reminder of mortality, coupled with the extra free time at most individuals' disposal during lockdowns has resulted in more enquiries directed to fiduciary practitioners. Would-be testators and practitioners were, however, confronted with major practical obstacles in giving effect to these instructions.

Kirkpatrick, Andrew, 'Updated Guidance on the Execution of Wills During the Covid-19 Crisis' 233(Spring) Writ 16
Abstract: Summarises the guidance issued by the Law Society of Northern Ireland's Non Contentious Business Committee on the execution of wills during the COVID-19 lockdown period where face to face meetings are difficult.

Popovic-Montag, Suzana and Nick Esterbauer, 'Maintaining a Wills and Estates Practice During COVID-19' [2020] (April) Toronto Law Journal 1-4
Abstract: As a result of COVID-19, lawyers across the country have had to temporarily alter their practices. In a profession where in-person meetings are expected by clients and/or necessary to see to the proper execution of legal documents, social distancing has forced the legal system to rapidly adapt to allow us to continue serving our clients in these unprecedented circumstances. This has posed a challenge for members of the Estates Bar in particular, as client meetings, will signings, hearings, and mediations have all been affected. During this time, however, it remains crucial that estate lawyers continue to help clients in creating or amending estate plans and in moving estate litigation matters forward. Familiarizing ourselves with the tools that have recently become available can be of great assistance in this regard.

Purser, Kelly, Tina Cockburn and Bridget J Crawford, 'Wills Formalities beyond COVID-19: An Australian-United States Perspective' [2020] (5) UNSW Law Journal Forum 1-14
Abstract: COVID-19 has brought a new focus to human mortality and a person's need to prepare for the transmission of their property at death. However, stay-at-home orders and social distancing requirements have made safely executing wills practically difficult. Using a comparative Australian-United States perspective, Dr Kelly Purser, Associate Professor Tina Cockburn and Professor Bridget J Crawford investigate the purposes of traditional wills formalities, suggest their continued vitality in the context of remotely witnessed or electronic wills, and critically discuss the emergency measures adopted in both countries and the arguments for and against making these measures permanent.

Smyth, Christine, 'What's New in Succession Law: COVID Conundrums: Consideration Needed on the Question of "Presence"' (2020) 40(4) Proctor 44-45
Abstract: It seems that no matter how fast I type, I can't match the speed with which things are changing as a result of COVID-19. At the time of writing, succession lawyers are grappling with how we might address the issues thrown up where there is a legislative requirement for witnessing and for it to occur 'in the presence of', particularly with respect to affidavits, wills, powers of attorney, advance health directives and superannuation binding death benefit nominations.

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