Flanagan J today handed down judgment in a hotly anticipated statutory will case. The proposed testator's son separated from his wife after the testator lost capacity. The applicant was the testator's husband. The application was on the basis that, if she were to have capacity, she would change her will so that assets would be … Continue reading Groundbreaking statutory will case – Statutory Wills and Family Law intersect
Son ordered to pay costs on unsuccessful FPA
In a timely reminder that costs do not always come out of the estate, an unsuccessful adult son was ordered to pay the costs of both the executor and the separately represented beneficiaries (on a standard basis up until the date of a Calderbank offer, and on the indemnity basis thereafter). Read Daniels v Hall … Continue reading Son ordered to pay costs on unsuccessful FPA
Judge ups award to carer in statutory will case
Today I appeared on a statutory will application. It was an "absent parent" case, although this time both parents were absent and the Aunt had been the testator's sole carer since 2008. She proposed that the residue be divided between her and the testator's 3 siblings equally (which would give her 25%). Applegarth J was … Continue reading Judge ups award to carer in statutory will case
Conflict clause allows attorney to act in own interests
The NSW Court of Appeal yesterday handed down a decision which held that an EPA which included a conflict clause, authorised the attorney to enter into a transaction in his own interests, which was not for the benefit of the donor. Read Taheri v Vitek here.
Application to join solicitors to solemn form proceeding dismissed with costs
Last Friday the Qld Supreme Court dismissed an application to join de Groots (as well as the individual solicitor) as defendants to a solemn form proceeding. The proceedings involve a disputed will - the testator's capacity is in issue. The plaintiffs are the disappointed beneficiaries under the penultimate will. The application was opposed on a … Continue reading Application to join solicitors to solemn form proceeding dismissed with costs
Interesting UK case
An interesting article from the UK's The Telegraph outlines a solemn form fight involving the deceased's two daughters and her lover, who is 23 years her junior. Read the article here
“donatio mortis causa” case
In a rare decision considering whether attempted gifts made "donatio mortis causa" were effective, Young J of the NSW Supreme Court found that the 3 elements were: (1) the gift must be made in contemplation of the donor's death, although not necessarily in expectation of death; (2) there must be delivery of the subject matter … Continue reading “donatio mortis causa” case
Claim by adult children dismissed in favour of spouse
In a recent judgment Balusch DCJ dismissed an FPA by two adult children of the deceased where there was a small estate (only $300K, pretty much just the house) and the competing claim was a long term spouse (24 year marriage). Read Hay v The Public Trustee here.
Fiduciary and Super don’t mix?
A very important decision re legal personal representatives and how their duties interact with superannuation. The applicant was the mother of the deceased and the administrator of his estate. The respondent was the deceased’s father. The deceased died intestate. As he had no spouse, his parents were to share his estate equally under the intestacy … Continue reading Fiduciary and Super don’t mix?
Husband and wife sign wrong mirror wills – rectification or informal will application both appropriate
Mirror wills were prepared for a husband and wife. Both wills were duly executed. By mistake, they each signed the will prepared for the other. Probate was sought of the husband's will under the informal will provisions of the NSW Act (their equivalent of Qld’s s18). Held – That effect may be given to testamentary … Continue reading Husband and wife sign wrong mirror wills – rectification or informal will application both appropriate
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