What is the extent of a personal representative’s duty to call on superannuation proceeds? Given the analysis of this question undertaken in McIntosh v McIntosh [2014] QSC 99 (McIntosh) and Brine v Carter [2015] SASC 205 (Brine), practitioners would be forgiven for thinking the permutations around that duty were settled. However, thanks to two recent Western Australian decisions – Denise […]

Dealing with recalcitrant executors and double probate 1 11,167 probate lodgments were filed in Queensland in 2017-18. 2 This was a 4.5% increase on the prior financial year, and a 21% increase over the last five years. 3 Along with this there is an inevitable increase in matters being referred to the court involving disputes as to whom a grant might issue. While no data is available, one […]

New power of attorney laws may offer a loophole What makes a ‘real friend’? The ordinary Macquarie International English Dictionary 1  defines friendas “…somebody emotionally close, somebody who trusts and is fond of another”.2 But we are in the new millennium, and the term ‘friend’ takes on many forms, 3  to such an extent that being a ‘friend’ is now a popular paid service in certain cultures,  for example Japan. 4 Currently 27% of […]

Contested Probate and Larke v NugusIs it law in Australia?WITH CHRISTINE SMYTH

From privilege to pains and trouble “You are not obliged to accept the role of personal representative” 1  is advice I typically give my  personal representative (PR) clients. Often their response is confusion as they seek to reconcile that advice with their own sense of responsibility. On the one hand they consider the appointment a privilege, on the other they know it is a heavy responsibility which will impact their […]

The decision of Legal Services Commissioner v Ronald Aubrey Lawson (LCR v Lawson)[1] is sad, because it involves a practitioner of decades standing with no prior disciplinary matters who is now at the end of his career with a blemished record. Clients frequently ask why legal advice is so expensive, and why do lawyers have so many processes and procedures […]

A brighter future for those in the sunset years.  Guardianship and Administration and Other Legislation Amendment Bill 2018 (GAOLA) After being introduced on 15 February 2018,  the GAOLA Bill was passed yesterday by Queensland Parliament. Amongst others, it amends the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998. Any person who is  appointed as an Attorney […]

With Christine Smyth As we make our way through the new year, we tend to reflect on old conversations and experiences with a mind to see how they might shape our approach to the year ahead. The decision of Radford v White [2018] QSC 306, handed down late last year, had me reflecting in a similar manner. Many years ago my […]

with Christine Smyth and Shane Budden When instructions are clear, you must prepare the will Earlier this year, Queensland Law Society invited me to co-present a webinar on the issue of testamentary capacity with ethics solicitor Shane Budden (with whom I also co-wrote this column). This year, the QLS Ethics and Practice Centre noted a marked increase in enquiries around […]

with Christine Smyth “The husband in this case is not the first nor will he be the last litigant who thinks he is smarter than those advising him. Nor will the husband be the first or last litigant to make foolish decisions. That in my view does not make him a person with a disability.”1 Many of us have irrational, […]