Today is the first day of my last week in legal practice. And, I’ve got to say, so far, it’s a roller coaster of emotions! Soon, I will be swapping my practice poncho for a research robe after being offered a scholarship to do my Doctorate with the Queensland University of Technology’s Australian Centre for…
Author: Michele Davis
succession nerd . lawyer . mediator . educator . writer . phd candidate
New audio-visual witnessing for Wills and Enduring Documents in QLD amid COVID-19
New regulations for Wills and EPAs made by Qld Government amid COVID-19
Facebook Friends
For those that prefer the company of the Facebook platform, I have, today, created a page for all my succession nerd ramblings. I’ve recently found that the Facebook platform to have developed in to quite a good platform to follow people and even, where appropriate, interact and engage with people via their page. I also…
Pandemic or Prejudice: FPA hearing vacated amid COVID-19 (ACT)
I sincerely hope this reaches my readers, followers, and passers-by in a situation where they are safe and well during this tumultuous time in the world! For those in litigation, your practice is changing daily as we wait (and wait) for certainty (if it is ever arrives!); and those hearings aren’t going anywhere.. or are…
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…
Conduct that disentitles: son’s application for FPA fails (QLD)
When someone contests a Will after being left out or not getting what they feel is their fair share, it’s more often than not that the surviving family want to suggest that that person’s conduct doesn’t entitlement to more, or sometimes anything. This is what us #lawnerds term as “disentitling conduct” in the context of…
Decision Impossible, Part 2: Appeal against disabled son’s FPA dismissed, with costs
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…
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…
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…
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…