Applegarth J today handed down a decision in a family provision application trial that took place earlier this month. I appeared for the applicant. The issue at trial was not whether adequate provision ought to be made, that much was conceded (although quantum was in issue), but whether any award for the applicant ought to … Continue reading To trust or not to trust, that is the question
Lack of trust
In a judgment delivered yesterday, Jackson J of the Supreme Court of Queensland had to decide whether various gifts to Oxfam Australia "for the purposes of [various educational activities in developing countries]" were absolute gifts, conditional gifts, or charitable trusts for the specified purpose. The problem arose because Oxfam could no longer fulfil the specified purposes, … Continue reading Lack of trust
High Court appeal
An application for special leave was filed last week against the decision of the Tasmanian Full Court in Calvert v Badenach [2015] TASFC 8. This is the case where the Full Court held that a solicitor owes a duty to beneficiaries of a will to advise the willmaker of the existence of family provision rights … Continue reading High Court appeal
Solicitor’s duty to beneficiaries expanded
Last week the Tasmanian Full Court handed down a decision which clarifies a solicitor's duty to intended beneficiaries when taking instructions for a will. It was held the solicitor's duty to give proper effect to the testator's intentions extends to enquiries and advice about the possibility and ramifications of FPA claims, and further includes provision … Continue reading Solicitor’s duty to beneficiaries expanded
Unsuccessful statutory will case
This was a joint approach by two interested parties for the court to make a will on (their own) agreed terms. Young J was not satisfied that the proposed will was one that the person would make if she had capacity. The applicant was the attorney of the proposed testator. She was ordered to bear … Continue reading Unsuccessful statutory will case
New mutual wills case
Flocas v Carlson is a mutual wills case handed down 4 June 2015 by McMillan J in the Victorian Supreme Court. It is a very long decision (100 pages) but contains a very detailed history of mutual wills cases, and considers important issues such as: whether mutual wills agreements are a contract (thereby requiring consideration, … Continue reading New mutual wills case
Ineffective codicil
This morning Martin J dismissed an application for probate of an informal codicil under s18 of the Succession Act 1981 (Qld). The deceased left a duly executed will, prepared by a solicitor. There was a later handwritten document, which was signed by her and dated, but not witnessed. It was stored with the will at a solicitor's office. … Continue reading Ineffective codicil
Disclaimer of gift
In a judgment delivered today Mullins J: considered whether a scholarship had been disclaimed by a beneficiary in circumstances where the beneficiary objected to some of the conditions of the gift - she held it had been considered whether the disclaimer could be retracted - whilst some circumstances in which a disclaimer could be retracted were discussed, … Continue reading Disclaimer of gift
Both parties’ costs capped in FPA
In Cerneaz v Cerneaz (No 2) [2015] QDC 73 Smith DCJA capped both parties' costs after a successful FPA by an applicant spouse. The applicant's costs were estimated at $140,000 and were capped at $100,000. The respondents' costs were estimated at $162,417.28 and were capped at $130,000. The Judge was critical that the actual amount … Continue reading Both parties’ costs capped in FPA
Superannuation – When is a binding nomination really binding?
The Supreme Court of Queensland has recently found that a purported binding death benefit nomination in a self managed superannuation fund was not valid. The nomination referred to payment to "Trustee of Deceased Estate". It was found that, due to the distinct difference in the role of an executor and the role of a trustee of a deceased estate, … Continue reading Superannuation – When is a binding nomination really binding?
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