Capacity case

Just before Christmas last year Applegarth J handed down a judgment in a solemn form trial I was in in November. I acted for the Respondent, Kathy, who was a long term friend of the deceased and benefited from his last two wills. The Applicants, the Rowes, were also long term friends of the deceased, … Continue reading Capacity case


Yesterday I finished a trial of an FPA in the Supreme Court.  The judgment is reserved and will be interesting because Ryan J is considering to what extent benefits that an applicant is to receive, or potentially receive, under the NDIS can be taken into account in determining whether adequate provision has been made and … Continue reading NDIS and FPAs

Barring claims under s68 Trusts Act

This is a case I was involved in last month.  Judgment was given yesterday. Finnegan v Garner [2019] QSC 100 The deceased died leaving a wife and eight children (including two step-children).  He and his wife separated in 2000, but did not divorce. The estate was worth just under $1m. It was believed that the … Continue reading Barring claims under s68 Trusts Act

Optional Extra: Court held exercise of Option to Purchase not done properly

Michele Davis

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 things: the equality among their intended beneficiaries and the wish for someone to receive a certain property.

One of the things that can be difficult with options to purchase properties is the way in which the clause that grants that option is crafted.  Does it contemplate how long that person has to say “Yes, I want to buy!”? Is that time reasonable? What should the purchase price be? If they don’t exercise the option to buy, then what happens after that?

A recent case of Cranitch v Cranitch & Ors [2019] QSC 42 brought this…

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Rectification where instructions given through an intermediary

Judgment was given this morning by Henry J in a rectification case where the deceased had given instructions for a will through his daughter. His Honour found "it is trite that instructions can be conveyed by an agent" and rectified the will to accord with those instructions. Read Fitzgerald v Rowley [2019] QSC 21 here. 

What is a “Purported will”?

S33Z of the Succession Act (Qld) provides that a person who has possession or control of a will of a deceased testator must, if asked, allow an entitled person to inspect the will and/or give a certified copy of the will on payment of the person’s reasonable expenses. will includes— (a) a purported will or revoked will; and (b) a part … Continue reading What is a “Purported will”?

Another video will

This week Jackson J admitted a video recording to probate, made by the deceased and comprising a file on his personal computer. In it, the deceased said "My girlfriend would like me to do a will before I pick up my motorcycle. As I am too lazy, I’ll just say it... I’ll fill out the … Continue reading Another video will