When preparing a will for a client, you need to take detailed instructions regarding any inter vivos gifts, advancements and loans. Client instructions should stipulate intentions such as whether gifts or advancements are to be deducted from a child’s estate and whether loans are to be forgiven. These instructions should be reflected in the will where possible and detailed notes should be kept on file.

A person making a will must be of sound mind, memory and understanding when executing the will (see Capacity); and must have knowledge and approve of the contents of the will (Nicholson v Knaggs [2009] VSC 64 at 151–155).

A will may be set aside if it is the product of testamentary undue influence. A party making the allegation of undue influence must prove that such undue pressure has been brought to bear that the will can be said to have been a product of this conduct (see Nicholson v Knaggs at 111). ‘The key concept is that of “influence”. The influence … becomes “undue” at the point where it can no longer be said that the making of the testamentary instrument represents the free, independent and voluntary will of the testator.’ (Nicholson v Knaggs, at 150).