New Power of Attorney & Advance Health Directive forms released (QLD)

The wait is now officially over with the new Queensland Powers of Attorney and Advamce Health Directive documents now being released. E documents are approved for use from 30 November 2020. These documents coincide with the legislative changes I wrote about regarding attorneys and guardians last year. This is the first update to these well…

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Changes to decisionmaker laws to commence soon (QLD)

You might recall that last year I wrote a post on new changes to laws for attorneys and administrators following the passing of the Guardianship and Administration and Other Legislation Amendment Act 2019. With the craziness that we now call COVID-19, the implementation of these changes that was scheduled for 30 March 2020 was postponed…

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No Undue Influence + Mutual Wills: Appeal dismissed in Birch v Birch case (Qld)

I have been eagerly awaiting delivery of the appeal decision in Birch v Birch [2018] QSC 289. The case of Birch v Birch involved a situation where a mother had transferred her interest in a farming property to one of her sons, who also happened to be the mother’s duly appointed power of attorney. Whilst…

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Family Affair: trust and property transfers set aside on bad faith and unconscionability (QLD)

The recent case of Campbell & Anor v T.L. Clacher No. 2 Pty LTd & Ors [2019] QSC 218 dealt with a application by two daughters as against the trustee of their family trust, the trustee of their sisters family trust and their father in respect of transactions that occurred between the parties following very…

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Screen Test: Court of Appeal prefers lawyer’s evidence over medical on testamentary capacity (NSW)

Capacity is quite the minefield.  Any practitioner that works within this field, may very well agree with me.  I would even hazard a guess and go as far as to say that perhaps even medical practitioners may also share the same view. Recently, in the case of Drivas v Jakopovic [2019] NSWCA 218, the New…

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Duty Bound: solicitor’s duty to beneficiary of incapable testator after inter vivos transfer

It was in the context of preparing for the delivery of my recent presentation for The Tax Institute’s Death…and Taxes Symposium on the Gold Coast recently that I come to read a recent case of solicitor negligence in the context of estate planning. In the appeal decision of McFee v Reilly [2018] NSWCA 322, a…

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Decisions, Decisions: ‘bad faith’ SMSF Trustee discretion decision set aside, Trustee removed

There is certainly no question that superannuation is a complex beast.  Add to that the self-managed superannuation fund (SMSF) variety and it will keep you busy, with it’s complex twists and turns, for days. I read a case recently that is no different.   A shout-out to a fellow nerd, Clifford Hughes, for bringing this case…

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Catch and Release: Court considers when s33Z applies to a ‘purported’ Will (Qld)

Recently, the case of Saltmer v Rennick Lawyers Pty Ltd [2018] QSC 307 was heard in the Supreme Court of Queensland in Townsville where the Court was called upon to question of costs in a situation where a deceased person’s family member requested a copy of a document held by a Solicitor that the family…

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Renewable Power: Court permits Attorney to renew superannuation nomination (QLD)

For a while now, it’s been a hazy question asked by succession lawyers alike about whether an attorney can make or renew a binding death benefit nomination for their principal’s superannuation policy proceeds. On 24 August 2018, Justice Bowskill of the Supreme Court of Queensland delivered a decision on this very topic. The case of…

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Missing element: High Court orders new trial in solemn form probate proceedings; denial of procedural fairness

It appears to be raining estate and trust law cases from the High Court of Australia over the last two weeks. Yesterday, the High Court of Australia ordered a new trial be held in relation to solemn form probate proceedings in Nobarani v Mariconte [2018] HCA 36 on the basis that the appellant as denied…

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Sorry, Frank, it’s over: High Court clarifies position on streaming franking credits to trust beneficiaries

As I begin this post, I acknowledge wholeheartedly that this topic might surprise my collection of followers.  While, yes, it is indeed a case review, it is focused on a different arm of succession law practice: trusts generally and *cough*taxation of trusts*cough*. As I witness the evolution of estate law before my eyes, I can’t…

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What is “Contemplation of marriage”: Marriage revokes Will in blended family (NSW)

Last week, the Supreme Court of New South Wales published a judgement in a estate matter where the question of whether a Will was “made in contemplation of marriage” was a central focus of their attention. In the case of Re Estate Grant, deceased [2018] NSWSC 1031, the deceased made a Will dated on about…

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Selfless surrender: defacto partner applies for Statutory Will to benefit mother and sisters (NSW)

  Sadly, it’s not often I read of a case where the applicant/plaintiff’s endeavours lack self-interest. Given the nature of estate litigation, generally in a good portion of the cases, self-interest takes a front seat.  Of course, that doesn’t mean to say that it is greed or something sinister that drives a person to take…

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The Unsent Text Message Will: Is it really that simple? No – it’s really not! (QLD)

It’s likely been in your news feed recently that an unsent text message was held by a Queensland Court to be a valid Will.  It may seem quite unbelievable to some that this would even happen! On the other hand, maybe it doesn’t? Reviewing the comments that appear in many of the media articles online…

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“Probable intention”: Novel rectification case in ACT

Recently the Supreme Court in the ACT was called to determine a question of the interpretation of a Will and subsequent amendments made to the Will by the testator on the day he died. In the Estate of Rummer [2017] ACTSC 277, the Plaintiff called upon the Court to determine the true construction of the…

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