Whose will is it anyway? Court of Appeal considers rectification power

The Qld Ct of Appeal today handed down judgment in a rectification case.  I appeared for the appellant.  This is the first time an appellate court in Australia has considered the new, broader powers of rectification of wills (introduced in Qld in 2006). The testator and her partner told their solicitor they each wanted the … Continue reading Whose will is it anyway? Court of Appeal considers rectification power

Important amendments to Qld Succession Act re de factos

On 5 June 2017, very important amendments to the Qld Succession Act came into effect that put de facto spouses and de facto stepchildren on the same footing as married spouses and stepchildren. I am proud of these amendments, being part of the Succession Law Committee of the QLS that lobbied for this uniformity. The … Continue reading Important amendments to Qld Succession Act re de factos

Note attached to will admitted to probate

Yesterday Peter Lyons J admitted to probate a signed but unwitnessed note, which was found stapled to the front of copy of a duly executed will.  The note recorded monies which the deceased wanted repaid to one of his daughters prior to distribution of his estate. Read Fraser v Melrose here.

Will Instruction Sheet fails as informal will

A solicitor's will instruction sheet was not admitted to probate as an informal will, in circumstances where the instruction sheets were incomplete in terms of what the deceased wanted included in his will and the deceased’s instructions were derived from different sources.  McMillan J was not satisfied that the document, standing alone, and without any alteration or reservation, … Continue reading Will Instruction Sheet fails as informal will

Leave to swear death for helicopter crash

The applicant's husband was the pilot of a helicopter that crashed into waters off Cape Tribulation.  The evidence suggested that he died in the accident but his body had not been found.  Leave was granted to swear death.  There was a discussion of whether such leave can be granted even though no probate application had yet been … Continue reading Leave to swear death for helicopter crash

Delusions, death and solemn form

Interesting case handed down yesterday by Lindsay J in the NSW Supreme Court discussing delusions and their effect on testamentary capacity.   There is a good discussion about the law on delusions, as well as the difference between solemn form and common form grants. Read Re Sue [2016] NSWSC 721 here.

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

New costs rule

On 19 December 2014, a new 700A was inserted into the Uniform Civil Procedure Rules regarding in estate and trust matters.  The new rule is set out below. Of course, these matters were always able to be taken into account in the court's wide discretion on costs, so it will be interesting to see what practical effect … Continue reading New costs rule

Security for costs ordered in de facto appeal

The deceased died intestate.  The respondent alleged he was her de facto spouse.  A finding was made by the trial judge that he was not.  He appealed that decision. Security for costs of the appeal was sought, and ordered in the sum of $10,000. Read Burton v Spencer here.