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…
Category: capacity
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…
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…
Selfless surrender: defacto partner applies for Statutory Will to benefit mother and sisters (NSW)
Sadly, it’s not often I read of a case where the applicant/plaintiff’s endeavours lack self-interest. Given the nature of estate litigation, generally in a good portion of the cases, self-interest takes a front seat. Of course, that doesn’t mean to say that it is greed or something sinister that drives a person to take…
The Unsent Text Message Will: Is it really that simple? No – it’s really not! (QLD)
It’s likely been in your news feed recently that an unsent text message was held by a Queensland Court to be a valid Will. It may seem quite unbelievable to some that this would even happen! On the other hand, maybe it doesn’t? Reviewing the comments that appear in many of the media articles online…
No Will, no way?: Court refuses application for statutory Will in large estate (Qld)
Admittedly, it’s not something that one regularly thinks about, but the issue of incapacitated people making Wills is a topic that achieves much discussion nowadays. Where a person doesn’t have a Will, whether by choice or otherwise, the law provides what I like to call a “back-up plan” or formula, if you will, of how…
Leaving a “note” for mum successfully appealed; “Note” = Will
Not all that long ago, I wrote an article on a case involving a gentleman who had passed away in China. He was Australian Citizen who was resident in China for many years and he had left a note for his mum regarding his wishes to distribute some of his property which gave rise to…
Dare to Care: Close personal relationship in FPA (NSW)
Many people would have a different view of exactly what a “close personal relationship” may look like. In New South Wales Family Provision law, their collection of people who may make a claim on an estate further further provision is much wider than that of Queensland. Under section 57(1)(f) of the Succession Act 2006 (NSW),…
Australian Citizen resident in China leaves a “note” for mum
Update! This case was successfully appealed in June 2017. Read my article on the appeal here. Documenting your wishes is simple in theory, but quite a different story in real world. The Supreme Court of Victoria had quite the job recently in deciphering whether a note a man left behind was considered to be his “Will” and…
