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…
Author: Michele
Danger Zone: costs against plaintiff in FPA in small estate (NSW)
Family provision claims in small estates is an inherit danger zone for claimants and lawyers. The recent case of Wengdal v Rawnsley [2019] NSWSC 926 has demonstrated this again where Justice Hallen has ordered that the plaintiff’s claim be dismissed and the plaintiff pay the defendant’s costs on the ordinary basis. In this case, the deceased…
New legislative changes for Attorneys and Administrators
While no person expects, nor wishes, to experience a lack of capacity, the very real fact of life is that they may. Incapacity can be long term or short term and can impact everyone quite differently. The question of someone’s capacity to understand the nature and the effect of something is fraught with difficulty mainly…
Optional Extra: Court held exercise of Option to Purchase not done properly
Will making is sometimes pretty complex work. The plan will always be unique to a person’s wishes and the personal circumstances. Every so often, I receive instructions from clients to include an ‘option’ for one of their family or friends to purchase their property. Usually, this is because they’re trying to balance at least two…
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…
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…
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…
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…
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…
Wife support: FPA by widow dismissed with costs (NSW)
It is a suggestion that arises throughout many estate disputes that the claim of a widow on an estate should be paramount to those of other family member who survive the deceased person. However, as each case is determined on it’s merits, this is not always the case. Yesterday, the Supreme Court of New South Wales…
