With the annual leave season starting in earnest over the next couple of weeks and many advisers taking either extended leave or alternatively taking the opportunity to catch up on things not progressed during the calendar year, last week’s post will be the final one until early 2026.
Similarly, the social media contributions by both the View and Matthew will also largely take a hiatus until the New Year as from today.
Thank you to all of those advisers who have read, and particularly those that have taken the time to provide feedback in relation to posts.
The 2024 edition of this book, containing all posts over the last year, edited to ensure every post is current, indexed and organised into chapters for each key area should be available early in 2026.
Very best wishes for Christmas and the New Year period.
** for the trainspotters, as was the case this time last year, the title today riffed from one of my favourite modern-ish Christmas related tunes, namely ‘How to make gravy’ by Paul Kelly.
It is well accepted that professionals, particularly lawyers, owe a duty to their client to ensure their objectives are met.
In the estate planning context, this duty has in a number of situations extended to claims by disgruntled beneficiaries.
The case of Calvert v Badenach [2015] TASFC 8 is a specific example.
Broadly the background was as follows:
The willmaker made a will leaving 100% of his estate to a named beneficiary, whom he also owned 2 properties with as tenants in common. Previous posts have explored the difference between owning property as joint tenants and tenants in common.
The willmaker's daughter challenged the will after his death and was successful in her claim, meaning the nominated beneficiary had his entitlements reduced and also incurred legal expenses.
The nominated beneficiary sued the willmaker's lawyer for negligence.
The court held that the lawyer was negligent and owed the nominated beneficiary a duty. The reasons for this included:
the law firm had acted in the purchase and registration of the two properties as tenants in common and an earlier will that provided for the daughter.
the lawyer should have investigated the situation of the daughter given that she was within a category of people that could potentially claim against the estate and advise accordingly. This advice should have included how to minimise the risks of a claim against the estate.
specifically here, the lawyer should have explained the consequences of not owning the properties as joint tenants (which would have seen them pass automatically to the surviving owner, instead of 50% of each property falling into the estate and subjected to the successful challenge).
importantly, strategies in relation to protecting against challenges against an estate would also need to factor in the 'notional estate' rules which are applicable for willmakers domiciled in NSW or with assets in NSW. Again, an earlier post explains the notional estate provisions.
While ultimately following appeal to the High Court in this case (namely, Badenach v Calvert [2016] HCA 18) much of the above decision was overturned, the fact that the matter went to the High Court is a warning in itself.
Furthermore, there were a range of competing views of judges at leach level of the process, including in the High Court.
It seems clear that this area will remain litigious, despite the High Court confirming that:
a lawyer’s duty is one to be protective of the client and their interests alone;
a lawyer will not be answerable in damages to a third party for a failure to advise the client on the consequences of a possible FPA.
a lawyer has no duty to a third party for failing to advise a client on strategies to avoid potential FPAs. The position in relation to adjacent areas however, such as failing to ensure a joint tenancy is severed to achieve a client's objectives, were not confirmed.
As usual, please contact me if you would like access to any of the content mentioned in this post.
** for the trainspotters, the title today is riffed from the Paul Kelly song ‘Deeper water’.
As previous posts have touched on, in order to be in a de facto relationship, two people need to ‘live together as a couple’.
The case of NSW Trustee and Guardian v McGrath & Ors [2013] NSW SC 1894 highlights that in order to live together as a couple, you do not necessarily have to share a particular residence.
As is often the case in disputes about whether a de facto relationship existed, following the death of one of the parties, the facts in this case were relatively complicated.
In summary:
The couple, with their respective life spouses had been friends for around 20 years.
When the respective life spouses passed away, the couple formed a close bond, which they shared for around 13 years.
They never lived together as such, however the relationship was often described as ‘boyfriend/girlfriend’.
They spoke every night on the phone.
They would meet at least a couple of times a week.
They would often holiday together.
the couple also attended all family functions (for example, birthdays, Christmas day etc.) together for one side of the family - in relation to the other side of the family, there was significant estrangement and no family functions were attended.
Following a dispute about the distribution of the estate on the first of the couple to die, the entitlement of the other party to the relationship turned on whether he satisfied the definition of a de facto.
The court decided that although the case was borderline, there was sufficient evidence to support the existence of a de facto relationship, given how devoted the couple seemed to be to one another, even though they never chose to share a residence for a lengthy period of time.
As usual, please contact me if you would like access to any of the content mentioned in this post.
** for the trainspotters, the title today is riffed from the Paul Kelly song ‘Before too long’. View hear (sic):
%20for%20the%20gravy%20%E2%80%A6%20Final%20Post%20for%202025%20and%20Season's%20Greetings%20%20%20by%20Matthew%20Burgess.png "View Legal blog - Time (again) for the gravy … Final Post for 2025 and Season's Greetings by Matthew Burgess")
