Near the end of last year, I wrote a post about an FPA by a disabled son where provision was ordered in favour of that son to the detriment of the surviving widow of the deceased. This was, I feel, aptly described in the title as “Decision Impossible” as the effect of the order was…
Author: Michele
Thank you for making me a Finalist
Last Friday afternoon, I received a very surprising and humbling email that informed me that I was a Finalist in the Queensland Law Society Awards for Proctor – Best Feature Article Award for 2020 for my piece called “New Principles for Decision Makers: Bill addresses conflict transactions and more” which appeared in May 2019. The…
Fractured Relationship: abuse and estrangement in FPA, provision ordered (NSW)
In the first post of this year, it seems fitting to write on the topic of disentitling conduct and estrangement, given my research interests in this space. Sadly, late last year saw the NSW Supreme Court determine a family provision application by a son against his father’s estate in what was clearly a very difficult…
Seeing is believing?: Will not seen by, or read to, deceased, upheld (VIC)
This week has found me reading lots of different and interesting cases and I can barely keep up! However, I was really interested to read this case and, whilst I appreciate my amazing subscribers are being bombarded with emails, I just had to post about it. Last week, the Victorian Court of Appeal was called…
Decision Impossible: FPA by disabled son against widow, forcing sale of family home in notional estate (NSW)
Recently, the NSW Supreme Court determined a very difficult family provision application by an adult son, in circumstances where the adult son was otherwise healthy when the deceased passed away, but subsequently suffered significant health issues following his father’s death. Further, the only available assets for such a family provision claim were via notional estate….
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…
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…
Changes afoot
A little while ago, I started writing a few posts on things other than cases in succession and elder law (I know, crazy right?!). These articles were drawn out from a love of helping people, just like those of my case updates. I decided to finally publish these cases on this blog. It’s a bit…
Authenticity
authenticity (noun) the quality of being real or true: Recently I gave a presentation to some lovely people that involved some talk about authenticity. Granted, it was in the context of marketing, but the message was/is, in my view, still very important. In the beginning steps of learning more about myself, both my personal and professional selves, I found that I…
Spend the time
Is there someone in your workplace or law land world that you don’t really get or struggle to work with? Do they make your work difficult or are they always at odds with you? I think it’s safe to say that it happens to all of us. What you do to work with these people…
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…
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…
The introverted lawyer
It is quite possible that most people think, when they think of lawyers, that lawyers are extroverts arguing with judges in front of a whole room of people and yelling “You can’t handle the truth!” (reference to the movie “A Few Good Men”, if you’re not up your movie quotes!). It’s probably safe to say…
Being a good human
There are days that are going to be really hard to get through. That’s a fact. What you do with that day, the feelings you feel, the decisions you make, the lessons you learn, even the anger you harbour; that is your choice. In the adversarial environment that is, more often than not, the law, it’s easy…
Leadership is…
Leadership is a lot of things and is not a lot of things. People have different ideas of leadership and it can often be a negative experience with an employer/boss that teaches us what we feel leadership really is and what it’s not. If we desire leadership in our own futures, it may also inform us what kind of…
Mistakes and reflection
Mistakes have an indeterminable value, despite whether you make them yourself or not. “Learn from the mistakes of others. You can’t live long enough to make them yourself” – Eleanor Roosevelt Reflection is a beautiful and powerful thing. There is a gut-wrenching feeling that one can experience that is unique to a mistake of your own…
Be curious… the cat will be fine
You know some of the most interesting and insightful things I learn come from the oddest of places. It also comes from being curious. Asking questions. Listening to others. I read the book called “How to Win Friends and Influence People” by Dale Carnegie. If you haven’t read it yet, I highly recommend it. In…
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…
