Michele Davis

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…

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…

The best version of yourself

I love anecdotes, quotes and old sayings. I also like bright things that spark light and happiness. We’re in the business of people. People are our business. So, it is a natural progression that human qualities and attributes are at the heart of what we do, day in day out, but also at the heart…

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…

The thing about job titles

… is that it’s just a title. Job titles do not describe the work that you’re actually doing and what value it has to you and your development. Take the title “Administrator”. I’m not necessarily speaking of an Administrator in the legal industry, but any type of industry. What is an Administrator? Do they “administer” stuff? What…

Beginning

Here appears a number of blog posts devoted to a few things that mean something to me. Passion. Positivity. Perseverance. …all within the realms of your legal career. As a [woman] lawyer working within what can sometimes be a very difficult industry, these things have been challenging to understand and achieve. In typical lawyer fashion, here’s the…

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…