The Heir Waves: Recent Episodes
Caite Brewer & Michele Davis
Join well respected and expert Australian succession lawyers Caite Brewer and Michele Davis as they discuss the latest succession, wills, estates and trust cases from around Australia.
In this episode, Caite & Michele explore the role of litigation guardians.
In this chat, we talk about:
- unpacking the case of Kerr v Fox [2024] QSC 174
- process of seeking appointment as litigation guardian
- who should be a litigation guardian, and why
- talking through issues of conflicts between litigation parties and the litigation guardian
- costs involved when acting as litigation guardian
- and other key takeaways for pracititoners in matters where there are minors involved, or those without capacity, that need appropriate representation.
As always, you can (and should) read the full case linked here.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
In this episode, Caite & Michele are joined by Brisbane Barrister, Dr Pip Coore, to talk through the relatively new provisions in the Powers of Attorney Act 1998 (Qld) ('The Act') that deal with the effect of a beneficiary's interest in a Will where the property dealt with by the attorney.
Caite & Pip lead the charge by going through a fairly recent matter they were involved in where they discuss:
- The new s61B in the Act
- Statutory exception to ademption
- The insights from the explanatory memorandum to interpret the application of the new section 61B of the Act
- The relevance of the interpretation of the gift, i.e. general or specific gifts and the importance of construction of wills principles and how to apply s61B
- How the difference between the two gifts and impact the application of s61B of the Power of Attorney Act
- The relevance of the timing of a dispute following the commencement of the provision
- Reference to Victorian decisions, Re Moran (2022) VSC 776 and Re Foord (2019) VSC 444
- Importance of considering your estate planning regularly.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
In this episode, Caite & Michele delve into the world of limited and special Grants that may be required to administer an estate, along with some example cases!
Caite takes us through a number of the limited grants, along with a brief distinction between a Grant of Probate and Grant of Letters of Administration.
In this chat, we talk about:
- the difference between a Grant of Probate and Grant of Letters of Administration;
- Full Grants, including:
- Letters of Administration cum testamento annexo (CTA);
- Letters of Administration de bonis non;
- Limited Grants, including:
- durante minore aetate - during infancy;
- durante absentia - during absence;
- during incapacity;
- pendente lite;
- ad colligenda bona;
- ad litem.
Michele then takes us through the two cases of MacDonald v MacDonald [2023] QSC 149, dealing with a pendente lite Grant, and Re Kelly [2022] QSC 117, dealing with an ad colligenda bona Grant.
You can (and should!) read the full cases - they're only 10 and 5 pages respectively!
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
- A note from Michele: I want to offer an apology for the delay in bringing this episode to our amazing audience and supporters. Due to some personal and technical (!) issues of late, this episode was sadly quite delayed in reaching you. I want to thank you kindly for your patience and look forward to publishing our next episode super soon!
In this episode, Caite & Michele work through two cases that involve (at least to some extent) some allegations of disentitling conduct. But, beware. Not is all as it seems.
We work through two family provision cases of Waters v Odell [2023] QDC 44 and Cooper v Atkin [2021] NSWCA 82 - both, at least at face value, make reference to conduct of the parties in the disputes.
In this chat, we talk about:
- The relevance of conduct allegations in family provision
- The importance of credibility of parties in a dispute
- The tests for family provision matters generally
- The need to weigh all elements of the family provision test on a case-by-case basis
- A warning about catchwords!
You can (and should!) read the full cases here and here.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
In this episode, Caite & Michele are joined by a special guest, Dr Pip Coore of Hemmant's List, and discuss the recent decision of Lambourne v Marrable [2023] QSC 219 involving a dispute about the validity of the revocation of older and making of new enduring powers of attorney where a principal lost capacity and subsequently regained it.
In this chat, we talk about:
- The test of understanding the 'nature and effect' of the document, vs the transactions that the EPA permits
- The need of understanding of the full extent of assets and structures, or lack thereof
- The presumption of capacity under the new s111A Power of Attorney Act 1998 (Qld)
- The risk of personal liability for attorneys acting when capacity is in question (or indeed the regaining of capacity!)
- Key take aways for practitioners making/revoking EPAs and/or advising attorneys
You can (and should!) read the full case here.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
In this episode, Michele (with a side of Caite!) guides us through:
- the case of Re Rentis Pty Ltd [2023] QSC 252 involving an attorney making a binding death benefit nomination for the principal's self-managed superannuation fund;
- principles of construction of an express authority to 'renew' a superannuation nomination by an attorney in an Enduring Power of Attorney;
- practical insights into the importance of drafting in attorney documents.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
In this episode, Caite (with a side of Michele!) guides us through:
- difference between a common form and solemn form grants and why it's important in this context
- what happens on the death of a party to proceedings
- what happens on loss of capacity of a party to proceedings
- relevant distinctions between state vs family law court jurisdictions (as it relates to family and estate law);
- practical insights on the cross-over between family disputes and estate law.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
In this episode, Caite & Michele are joined by the amazing Leila Chalk, Managing Director of Forty Four Degrees Legal and guides us through:
- basic explanation of culturally significant terms in estate work
- explanations of relevant muslim and islamic terminology
- common issues found in estate planning
- beneficial interests under islamic inheritance laws
- practitioner tips and advice for respectfully managing religious and cultural considerations in estate work
- common misconceptions when assisting clients of religions or cultures.
For those interested in getting in touch with Leila and talking more about this incredibly valuable topic, you can find Leila here: www.fortyfourdegrees.com.au
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
In this episode, Caite & Michele are joined by the amazing Ian Raspin, estate and trust tax specialist and Managing Director of BNR Partners and discuss some of the basic principles relating to:
- how income tax works in estates and trusts
- what you need to know Capital Gains Tax and deceased estates
- superannuation and tax issues
- personal liabilities of legal personal representatives in dealing with tax in estates
- issues relating to foreign residents
- tax and charitable beneficiaries.
For those interested in getting in touch with Ian and talking more tax (!), you can find Ian here: www.bnrpartners.com.au
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal, tax or financial advice under any circumstances. The information provided is of a general nature. If you require help with a legal, tax or financial matter, contact your lawyer or advisor and obtain advice for your specific circumstances.
In this episode, Caite & Michele are joined by the lovely Tara Lucke of The Art of Estate Planning and discuss:
- the basics testamentary trusts and what they are (and aren't!)
- the pros of using testamentary trusts
- the cons of using testamentary trusts
- some key things to consider in using testamentary trusts
- helping clients understand these strategies
For those interested in Tara's group of her TT Precedents Club, see the links below:
- The Art of Estate Planning
- The TT Precedents Club
- Everything Tara!
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal advice under any circumstances. The information provided is of a general nature. If you require help with a legal matter, contact your lawyer and obtain advice for your specific circumstances.
In this episode, Caite & Michele discuss:
- the case of Bassett v Bassett [2021] NSWCA 320
- early inheritance in family provision claims
- the importance of drafting and terms
- managing applicants with strong financial positions
With increasing levels of inter-generational wealth tr.ansfer happening, this is an episode (and case!) not to be missed.
Other decisions mentioned in this episode are:
- first instance decision regarding family provision, estoppel and cross-claim: Bassett v Cameron [2021] NSWSC 207
- costs decision: Bassett v Cameron (No 2) [2021] NSWSC 419
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal advice under any circumstances. The information provided is of a general nature. If you require help with a legal matter, contact your lawyer and obtain advice for your specific circumstances.
In this episode, Caite & Michele discuss:
- the case of Re Permewan (No 2) [2022] QSC 114
- gift and loan back strategies being used in estate planning
- trying to thwart family provision claims using gift and loan back transactions
- briefly the case of Re Permewan [2021] QSC 1251
- sham transactions
- promissory notes
- public policy reasons
- importance of the circumstances of each case.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal advice under any circumstances. The information provided is of a general nature. If you require help with a legal matter, contact your lawyer and obtain advice for your specific circumstances.
In this episode, Caite & Michele:
- are joined with special guest, Scott Hay-Bartlem, Partner and Superannuation guru at Cooper Grace Ward Lawyers. Find out more about Scott here.
- discuss all things superannuation with Scott, trustee discretion, binding nominations and the importance of superannuation strategy in planning
- discuss the recent cases of Re Marsella; Marsella v Wareham [No 2] 2019 VSC 6 (as mentioned in Episode 2) and Ioppolo and Hesford v Conti [2013] WASC 389.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal advice under any circumstances. The information provided is of a general nature. If you require help with a legal matter, contact your lawyer and obtain advice for your specific circumstances.
In this episode, Caite & Michele discuss:
- The family trust case of Re Owies Family Trust [2020] VSC 716
- Where the power to vary a trust was not sufficient to amend the description of the "Guardian and Appointor" of the trust
- Where the trustee was found not to have acted with 'real and genuine' consideration of potential beneficiaries of the family trust in relation to income distributions
- What's coming up in our next episode and a heads up on a little surprise we have coming up!.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal advice under any circumstances. The information provided is of a general nature. If you require help with a legal matter, contact your lawyer and obtain advice for your specific circumstances.
In this episode, Caite & Michele discuss:
- Follow up question from 'Episode 1: To Love and To Loath'
- The self-managed superannuation case of Re Marsella; Marsella v Wareham [No 2] 2019 VSC 65 - where SMSF trustee was found not to have acted with 'real and genuine' consideration of potential beneficiaries of superannuation and SMSF trustee removed
- What we've learned [since our last episode]
- What's coming up in our next episode.
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal advice under any circumstances. The information provided is of a general nature. If you require help with a legal matter, contact your lawyer and obtain advice for your specific circumstances.
In this episode, Caite & Michele discuss:
- the mutual wills case of Forster v Forster [2022] QSC 30
- the family provision case (including disentitling conduct allegations) of Hartley v Hartley [2021] QDC 323
- managing expectations of potential beneficiaries to mutual wills agreements
- the efficacy of statutory declarations of reasons by a testator
Have a question or want to submit a case for discussion, send Caite & Michele an email at hello@theheirwaves.com.
Don't forget to subscribe for all the latest episodes!
See you next time on The Heir Waves.
IMPORTANT NOTICE
The information provided in this podcast is not to be construed as legal advice under any circumstances. The information provided is of a general nature. If you require help with a legal matter, contact your lawyer and obtain advice for your specific circumstances.
Join well respected and expert Australian succession lawyers Caite Brewer and Michele Davis on The Heir Waves as they discuss the latest succession, wills, estates and trust cases from around Australia.