Leave ’em a loan: Liability to pay mortgage left with joint tenant

The liability of a mortgage is probably one of the most significant liabilities a couple will share. Whilst many times it’s a fairly equal distribution of that liability when everything is held jointly, it’s not always the case in circumstances of second/later relationships or a singular income earner and home maker. The recent decision of…

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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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Elder Abuse = Disentitling Conduct: FPA by adult daughter dismissed with costs

It is no surprise to any of my colleagues in the succession world that this topic is of great interest to me. So, you can imagine my interest when I found this case. A few days ago, the New South Wales Supreme Court determined a matter that involved a family provision claim by an adult…

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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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Family Values: successful FPA by trans woman, following estrangement & disharmony among family (VIC)

I recently read an interesting media article on a family provision case and had to look further into get to the bottom of it. It involves a case where an adult child made a claim against a father’s estate for further provision having received no provision from the estate under the father’s Will. What was…

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Criminally unkind: ACT passes elder abuse legislation

On 20 August 2020, the Australian Capital Territory passed legislation criminalising acts of abuse of vulnerable people. The term ‘elder abuse’, for many, is a problematic term as it suggests it is only an abuse that only affects elders, when the truth of it is, it affects those that are vulernable. The new legislation acknowledges…

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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…

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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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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…

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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…

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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…

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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…

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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.…

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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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