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A trustee does not have an implied power to vary the terms of a trust. The terms of the trust may only be varied: in accordance with the terms of the trust, or with the informed consent of all beneficiaries (and they all must possess legal capacity), or pursuant to … read more

Since a Queensland Supreme Court decision in 2014 (involving an administrator of an intestate estate, but a decision of the South Australian Supreme Court indicates that the situation is similar with an executor appointed by a will), this question has been regularly raised where there is a dispute about the … read more

Jen McMillan and I considered this question in an article published in the Law Society Journal October 2020 edition. LSJ October 2020 Superannuation And Estate Planning McMillan Browne

Since changes were made to the wills legislation in 1989 – that’s 32 years ago – it has been possible for something which is a not properly made will to be treated as equivalent to a properly made will. This faux will is universally called an ‘informal will’. It was … read more

LSJ October 2021 Joint Tenancy Article

  When a person dies owning assets in NSW, the person named as executor in the deceased’s will or, if there is no valid will or no executor willing and able to act, a beneficiary of the estate applies to the Supreme Court of NSW for a grant to represent … read more

To download Darryl Browne’s article in PDF format, please click the following link –  Precedent Mental Capacity The Tests And Assessment April 2018

  The main question for determination in Spink v Flourentzou [2019] NSWSC 256 was whether, by reason of payments totalling $147,000 made by Rickie Spink to her daughter, Dianne, and son-in-law, Mario, at around the time of the completion of the contract by which they acquired a house to live, Mrs Spink … read more

Granny Flat Arrangements are a next generation issue. That’s not because they’re new; they’ve existed for years. But with the focus on the inadequacies of aged care facilities, through the Aged Care Royal Commission and the COVID crisis in aged care accommodation, granny flat arrangements will start to look like a … read more

For years I’ve been preaching about the need for lawyers to observe Best Practice with Estate Planning to help prevent elder financial abuse of clients. I blogged about it in 2017, in four separate posts: 1. Safeguards to reduce Elder Abuse (Setting up the meeting), which was blogged on 5 … read more

For more than a century, legislation has allowed courts to award part of a dead person’s estate to someone who didn’t originally receive any benefit, or who received insufficient benefit. Prior to then, and in the absence of this legislation it would be the situation still, freedom of testamentary disposition … read more

The deceased was Wiradjuri  and born in Gilgandra. His mother wanted him buried there. He was living in Newcastle at his death. His estranged wife and eldest children wanted him cremated and his ashes kept where he was living. The court in Milson v Milson [2020] NSWSC 919 was called … read more

This is a seriously good conference. It starts with a 4 hour workshop on family provision claims, from start to finish. This is run by two barristers who know what, when and how it all happens. If you’re doing something else on Friday 11 September 2020 from 12.30 pm, then … read more

Solicitor Con Fabiatos witnessed Antonios Theodoulou’s will. The execution clause contained a recital that the will was read to the testator in “Greek being the customary language understood by him and the Willmaker appeared to thoroughly understand the same and approved the contents thereof”. After his death, an issue arose as … read more

Testamentary capacity has a long and rich history. The first reported decision is Marquess of Winchester’s Case [1572] EngR 280. When Banks –v- Goodfellow (1870) LR 5 QB 549 was decided 300 years later, and 150 years ago on 6 July 2020, testamentary capacity had firmly developed three of the 4 limbs of the Banks … read more

John Angius and his estranged wife co-owned a residence at her death in 2012. In 2015 the Supreme Court made consent orders for the sale of the residence. The orders noted Mr Angius’s agreement to vacate the residence within 28 days. It was only after further proceedings that he vacated … read more

Raoul, a widower and pensioner without immediate family, transferred his home to Hanna, a nephew of his late wife, in return for Hanna repaying a debt which was secured by a mortgage over Raoul’s home, and the grant of a life estate to Raoul. There was no dispute that the … read more

Benefiting a not-for-profit organisation, a charity is lay terms, is altruistic. It is a common intention with some testators when making their will. However, getting it wrong is far too common, often because insufficient care is taken to correctly describe the intended charity. Judith Walsh’s last will is an example which … read more

In Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259, F was heavily pregnant with B. B was diagnosed in utero with a condition where the aorta and the pulmonary artery were transposed. If not corrected, the condition would lead to B’s death within a short time of birth. … read more

I’ve had the pleasure to write an article on digital records with Natalie Darcy for the Law Society Journal. The article is available here:  Digital Records And Estate Planning  Access and use of digital records is a developing area of law, in estate planning as elsewhere. Natalie will speak in more depth on this topic at … read more