ByLawyers News and Updates

101 Succession Answers – QLD

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Two new Supreme Court cases have been added to the By Lawyers reference manual 101 Succession Answers (QLD).

In Re Chambers (dec’d) 2023 QSC 230 irregularities with signing a will did not invalidate it. The testator and the witnesses had missed signing parts of a two-page, pre-printed, will form. The court found there was no question that the testator intended the document to be a testamentary instrument. The evidence showed that he signed it, the two witnesses were both present and saw him sign it, and they each signed the will in his presence.

In Re Briggs (dec’d) [2023] QSC 226 the issue of capacity was determined without expert medical evidence. Letters written by two treating doctors shortly before the dates of the relevant will certifying the deceased did not have capacity for decision-making were enough for the court to find she had no testamentary capacity.

Interestingly, both of these cases were determined without oral evidence, under r 489 of the Uniform Civil Procedure Rules 1999 (QLD). This can occur in any case, on the application of a party, unless the court thinks it inappropriate. In Briggs the court noted:

Nothing in either r 489 or r 491 expressly defines the notion of disposal without oral hearing being “inappropriate”. The meaning of the term “inappropriate” must be taken from the context and purpose of the rule. Here, the clear purpose of r 489 is the efficient and economical disposal of the Court’s business. The primary aim though of the Court in exercise of any of its jurisdiction is to do justice. It will not be “inappropriate” to exercise the Court’s jurisdiction to determine the application without oral hearing where justice can be done without an oral hearing.

101 Succession Answers (QLD) is available in the Reference Materials folder in Folder A. Getting the matter underway on all succession related matter plans: Probate, Letters of Administration, Family Provision Claim, Wills, Powers of Attorney and Advance Health Directives.

WILLS AND POWERS OF ATTORNEY VIC

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Wills and Powers of Attorney

MAY 2017
  • Commentary updated to take into account changes introduced by Powers of Attorney Amendment Act 2016 and Powers of Attorney Amendment Regulations 2017. See commentary and article ‘Powers of Attorney – Evolution’. Changes include:
    • impact of new enduring power of attorney on previous powers;
    • clarification of the number of alternative attorneys that can be appointed;
    • forms updated in line with substituted forms as introduced by amending regulations.
  • Commenced 1 May 2017.
JANUARY 2017
  • New Commentary on Challenging the validity of a will
    • Challenging a will questions its validity. Contesting a will questions the fairness of its provisions. The circumstances and processes when challenging a will are similar across all the states in legislation and in the common law principles that govern this interesting area of the law. This addition to commentary covers helpful tips for practitioners if they are faced with a client wishing to challenge the validity of a will.
  • Updated information on LIV Capacity Guidelines and Toolkit
OCTOBER 2016
  • Powers of Attorney Commentary- Author update regarding witnessing execution by the attorney.
  • Costs Agreements
    • Included reference to time limit for bringing costs assessment, total estimate of legal costs section with provision for variables, and authority to receive money into trust.
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
  • Wills Commentary – Author update regarding superannuation as part of the estate.
JUNE 2016
  • Added new precedent – Individual will creating multiple testamentary discretionary trusts
  • Case law – Succession has been enhanced with addition of discussion on Badenach v Calvert re duty of care to intended and disappointed beneficiaries.
MAY
  • Added to commentary – New content re Interstate powers of attorney and Interstate instruments.
APRIL
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
MARCH
  • Commentary enriched to include a new section ‘What an attorney can’t do’. Commentary also enriched to include Instruments made in other states
FEBRUARY
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

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