Course Title: Wills, probate and administration

Part B: Course Detail

Teaching Period: Term2 2013

Course Code: LAW5192

Course Title: Wills, probate and administration

School: 650T TAFE Business

Campus: City Campus

Program: C6106 - Advanced Diploma of Legal Practice

Course Contact : Doug Gourlay

Course Contact Phone: +61 3 9925 5944

Course Contact Email:doug.gourlay@rmit.edu.au


Name and Contact Details of All Other Relevant Staff

Judy Dredge (Sessional Teacher)   judith.dredge@rmit.edu.au

Nominal Hours: 51

Regardless of the mode of delivery, represent a guide to the relative teaching time and student effort required to successfully achieve a particular competency/module. This may include not only scheduled classes or workplace visits but also the amount of effort required to undertake, evaluate and complete all assessment requirements, including any non-classroom activities.

Pre-requisites and Co-requisites

Pre-requisites:  VU20111 Legal Process

Course Description

The purpose of the module is to provide and develop specialised skills in particular areas of Wills and Deceased Estates as might be desired for a person engaged in the operation of a legal office, or associated fields in the public or corporate sectors.


National Codes, Titles, Elements and Performance Criteria

National Element Code & Title:

VU20116 Wills, probate and administration


Learning Outcomes


Upon successful completion of this course you will be able to:

Learning Outcome 1 - Evaluate and outline the procedure for drafting and execution of wills and identify the possible objections to the validity of wills and codicils, and apply to a relevant case study.
Assessment criteria
1.1 Analyse the law applicable to the validity of wills and identify the practical considerations arising from that law.
1.2 Determine and analyse the considerations exercised by the Registrar of Probates in relation to admitting or objecting to a form of a will.
1.3 Evaluate the functions of the following specialist areas:
      • Delegation of will making power
      • Revocation and Amendment of wills
      • Incorporation by Reference Republication and Revival
      • Purpose and operation of secret trusts
1.4 Outline and evaluate alternatives for the procedure for drafting a simple will.
       • Taking instructions
       • Ambiguous clauses
       • Proper description of real and personal property
       • Description of charities
       • Appointment of executors
       • Creation of testamentary trusts
1.5 Assess and determine a particular example or case study pertaining to the drafting of a will and the handling of objections to the validity of the will and codicil. Include the following elements:
      • Diagnose and analyse drafting errors
      • Generate ideas for correcting and removing drafting errors
      • Use conceptual drafting skills in a small group environment

Learning Outcome 2 - Analyse the specialised nature, form and effect of a caveat in the Probate jurisdiction of the Supreme Court, and apply to a relevant case study.
Assessment criteria
2.1 Investigate, define and determine the applications of Caveats. Include the following:
       • Form of caveat
       • Meaning of caveat
       • Effect of caveat
2.2 Analyse the necessary content of a caveat and to include the basis of claim and the procedure.
2.3 Specify the procedure for the commencement of proceedings, and the appropriate forms and documents.
2.4 Examine and analyse a particular example or case study, outlining the principles of drafting a will and the handling of objections to the validity of the will and codicil.
2.5 Produce a draft of a will and codicil.

Learning Outcome 3 - Identify and analyse situations giving rise to family provision claims (formerly under the Testators family maintenance provisions) and employ the legal procedures necessary to make a claim for adequate provision by a person for whom the deceased had a responsibility to make provision.
Assessment criteria
3.1 Identify and analyse Family Provision claims.
3.2 Analyse the effect of an order on a will.
3.3 Outline the procedure to make a claim for family provision under Part IV of Administration and Probate Act, 1958.
3.4 Analyse a particular example or case study identifying Family Provision, and the legal procedure to make a claim.

Learning Outcome 4 - Demonstrate how the law relating to the distribution of intestate estates, can be applied to a relevant case study.
Assessment criteria
4.1 Demonstrate and evaluate the provisions of the Administration and Probate Act.
4.2 Define, analyse and state the clauses for effectiveness.
4.3 Define and differentiate between classes of Estates.
4.4 Examine a particular case study demonstrating the law relating to the distribution of intestate estates identified in 4.1, and between classes of Estates identified in 4.3

Learning Outcome 5 - Investigate and assess the powers, duties, and obligations of Executors and Trustees in relation to the administration of deceased estates, and demonstrate in a relevant case study.
Assessment criteria
5.1 Evaluate and identify the appropriate laws relating to executors, and trustees, and discuss with reference to a relevant example. These include:
      • Executors Powers, Duties and Obligations
      • Trustees Powers, Duties and Obligations
5.2 Outline the practical considerations in the administration of deceased estates. ’
5.3 Specify the effects of an Executor failing to perform.
5.4 Analyse and apply the laws relating to executors and trustees as specified in 5.1 to a particular case study.

Learning Outcome 6 - Produce and employ completed documentation and procedures to obtain Probate of a will or Letters of Administration, and ascertain the power that ‘Probate’ or ‘Administration’ gives an executor or Administrator.
Assessment criteria
6.1 Analyse and define ‘Probate’ or ‘Administration’, and report on general considerations and the use of power in Probate Applications and Letters of Administration.
6.2 Identify and assess the power that ‘Probate’ or ‘Administration’ gives an executor or administrator including Power from Probate and Power from Letters of Administration.
6.3 Specify how a Probate or Administration is obtained. Consider and analyse the following steps:
      • Advertising
      • Searching
      • Affidavits
      • The order
      • The probate application/order for probate
      • The application for Letters of Administration
6.4 Determine the impact and implications of the power that ‘Probate’ or ‘Administration’ gives an Executor or Administrator.


Details of Learning Activities

Students will study the principles of Intellectual Wills, Probate and Administration in class sessions, practical sessions and through prescribed exercises and assessment work. These concepts will also be explored through the investigation of the application in the real world and simulated environments.

Classes of 2-3 hours per week for 16 weeks as per the teaching schedule. The nominal hours associated with this are a guide only and represent the total teaching time and student effort required to successfully complete the course. This may include not only scheduled classes but also the amount of effort required to undertake, evaluate and complete all assessment requirements, including any non-classroom activities.
The week by week classes as per the teaching schedule below and assessments, including due dates, are subject to variation. Class teachers will to keep as close as practicable to that set out in this Part B Statement.

Course requirements: students consult timetable and are expected to attend all scheduled classes
Course support documents: see RMIT Blackboard
Student Induction: conducted prior to commencement of classes or during the first class and will cover the following: Blackboard, Overview of assessment requirements including Recognition of Prior Learning and Credit Transfers, Grading, Plagiarism, Appeals,Extensions,Feedback,Privacy, Submission requirements, Resubmission policy, Where to get support, Student responsibilities
 


Teaching Schedule

Week Date week begins                                         Topic                                                                                                                                                               Learning Outcomes (LO)/Assessment  Criteria Assessment                                                                       
Week 108 JUly Introduction to the law of succession LO1 Instructions client files
Week 215 General nature of Wills LO1 Instructions for Gatehouse Will file 1
Week 322 Will-making capacity and Statutory Wills LO1, 2 
Week 429  Formal requirements of Will making & revocation and alteration of Wills LO1 
Week 505 August Rectification of Wills LO2 
Week 612 Construction of Wills LO1 Letter + Gatehouse’s Will 1 due (12 marks) Instructions for Estate Arthur Newstead (file 2)
Week 719 Gifts by Wills LO1 Day students to submit plan of Judgment to Paul
Week 826 Family provision LO3  Probate advert due Estate Newstead (5 marks) & Instructions for Gatehouse’s second Will
   Mid Semester Break (Student Vacation)  
Week 909 September Practical Placement & no classes for day and evening group  
Week 1016 Intestacy and distribution on intestacy LO4 
Week 1123 Appointment of Personal Representatives and Grants of Representation LO5 Letter + Gatehouses’s second Will due (18 marks)
Repeat Instructions final probate documents Estate Newstead
Week 1230 Duties of Personal Representatives LO5 
Week 1307 OctoberRevision + help with Est Newstead probate documents LO6 Originating Motion, Affidavit, Inventory + Parchment Estate Gatehouse due (20 marks)
Week 1414 Revision LO1-6 
Week 1521Scheduled date for Final Test (40 marks) LO1-6 Class Test 45%
2 Hours Open Book plus reading time
Week 1628 Possible alternate date for Final Test – student classes to decide date.  If requested, completed files, as corrected, to Paul for final assessment

The nominal hours associated with this are a guide only and represent the total teaching time and student effort required to successfully complete the course. This may include not only scheduled classes but also the amount of effort required to undertake, evaluate and complete all assessment requirements, including any non-classroom activities. 


Learning Resources

Prescribed Texts

 Principles of Australian Succession Law by Ken Mackie LexisNexis- Butterworths


References


Other Resources

• Wills Probate & Administration Service Victoria Butterworths Boaden Collins Phillips and Sparke
• Wills Probate & Administration Victoria Law Book Co. Box Morrison Telfer
• De Groots Wills Probate & Administration Practice Victoria
• Hutley’s Australian Wills Precedents Fifth Edition Butterworths
• The Australian Encyclopaedia of Forms and Precedents Third Edition Volume 15 Wills
• Wills and Intestacy in Australia and New Zealand Second Edition Law Book Co. 1989 Hardingham Neave and Ford
• Succession Law: Commentary & Materials Butterworths 1996 Atherton and Vines
• Succession, Families, Property and Death 3rd edition Butterworths Croucher + Vines
• Succession Commentary and Materials 5th edition LBC Hutley, Woodman and Wood
• The Law of Succession in NSW Certoma 3rd edition LBC
Important legislation:
• Wills Act 1997
• Administration and Probate Act 1958
• Trustee Act 1958


Overview of Assessment

Assessment methods have been designed to measure achievement of the requirements in a flexible manner over a range of assessment tasks and may include:

• case study analysis
• short answers questions
• written assignments/reports/tests
• oral presentations
• projects

Students are advised that they are likely to be asked to personally demonstrate their assessment work to their teacher to ensure that the relevant module standards are being met.


Assessment Tasks

1.Client files 30%
2.Deceased estate probate documents 25%
3.Final open book test week 15  45%
Description of Assessments

Assessment 1 Client file 1 drafting and submitting letter to client enclosing relatively simple Will for signing (due week 6 – 12 marks and, subsequently, drafting letter to client enclosing more complicated Will for signing (due week 11 – 18 marks).
 

Assessment 2 Client file 2 drafting and submitting Probate documents in respect of a deceased estate with the Probate Notice due in week 8 (5 marks) and final probate documents due in week 13 (20 marks).

Assessment 3 is the final open book exam worth 45 marks scheduled for week 15 where you will probably have to answer 3 major questions in 2 hours plus reading time (45 marks).

Students must demonstrate an understanding of all elements of competency to be deemed competent.
A range of assessment methods are used to assess practical skills and knowledge, for example:
* tests and examinations in formal settings
* assignments, projects and case study analysis
* direct questioning combined with review of portfolios of evidence
* review of authenticated documents from the workplace or training environment
* demonstration of techniques
* Class presentation

Assessment Grading
HD High Distinction 80-100
DI Distinction 70-79
CR Credit 60-69
PA Pass 50-59
NN Pass 0-49

Critical aspects of assessment
• Knowledge of wills and probate relating to validity of wills,
drafting procedures and execution of wills
• Interpreting the key principles of wills and probate law
• Examining legal procedures to make a claim for family
provisions
• Researching and analysing law relating to the distribution of
intestate estates
• Investigating the administration of deceased estates
• Obtaining a grant of probate and letters of administration

 


Assessment completion requirements

You are required to complete 3 assessment tasks.
To pass this course students must attempt assessments as required which are graded upon submission by the class assessor.
Grading is weighted so that a mark of 50% is a passing grade.

Assessment submission requirements

Assessment tasks need to be submitted via turnitin on Blackboard unless otherwise advised.

You should:

* Ensure that you submit assessments on or before the due date. If your performance in the assessment is affected by unexpected circumstances, you should consider applying for Special Consideration. Information on the process and application forms is available at http://rmit.edu.au/browse;ID=ls0ydfokry9rz website.
* Always retain a copy of your assessment tasks. (hard copy and soft copy)
* When you submit work for assessment at RMIT University you need to use a cover sheet that includes a declaration and statement of authorship. You must complete, sign and submit a cover sheet with all work you submit for assessment, whether individual or group work. On the cover sheet you declare that the work you are presenting for assessment is your own work. An assignment cover sheet for submission of work for assessment is available on blackboard.
* Each page of your assessment should include footer with your name, student number, the title of the assessment, unit code and title and page numbers. For example, Julie Macpherson, 324567, Task 2, OHS2345C Ensure safe workplace, Page 1 of 10.


Marking Guide

Further information regarding the application of the grading criteria will be provided by your teacher.
 


Assessment Matrix

Learning OutcomeClient Wills 30%Probate file 25%tFinal Test. 45% 

1. Evaluate and outline the procedure for drafting and execution of wills and identify the possible objections to the validity of wills and codicils, and apply to a relevant case study.

 X X X
2. Analyse the specialised nature, form and effect of a caveat in the probate jurisdiction of the Supreme Court, and apply to a relevant case study.   X
3. Identify and analyse situations giving rise to family provision claims (formerly under the Testators family maintenance provisions) and employ the legal procedures necessary to make a claim for adequate provision by a person for whom the deceased had a responsibility to make provision.
 
 X X X
4. Demonstrate how the law relating to the distribution of intestate estates, can be applied to a relevant case study.
 
  X
5. Investigate and assess the powers, duties, and obligations of Executors and Trustees in relation to the administration of
deceased estates, and demonstrate in a relevant case study.
 
   X
6. Produce and employ completed documentation and procedures to obtain Probate of a will or Letters of Administration, and ascertain the power that ‘Probate’ or ‘Administration’ gives an executor or Administrator.  X 

Course Overview: Access Course Overview