CHRISTINE SMYTH – BLOG

CHRISTINE SMYTH – BLOG
December 4, 2012 /

HAS YOUR EXECUTOR LOST CAPACITY? IF SO BEWARE THEIR ENDURING POWER OF ATTORNEY MAY BE GRANTED PROBATE OF YOUR WILL.

Many clients approach their will as a “set and forget” exercise. There is much commentary as to why testators ought to review their wills regularly. Much of this commentary centres on the changes in financial circumstances. What is not commonly contemplated, are changes relating to the appointment of executor. Where it is considered, the focus is usually on the death of the executor. However, what clients often overlook, is like them, executors are living longer and with that, the incidence of lost capacity increases. This is especially the case where the executor is over 65.[1] Testators should be mindful, that when you appoint a person as your executor, and that executor loses capacity, the executor’s Enduring Power of Attorney, may be the one who ends up administering your estate. The decision of In the Will of Bob Wild Deceased [2002] QSC 200, considered this very issue. There the Supreme Court of Queensland considered various provisions of the Powers of Attorney Act 1998, Succession Act 1981, Trusts Act 1973 and Uniform Civil Procedure Rules 1999. In doing so it confirmed the Supreme Court has the power to Grant Probate to the Enduring Power of Attorney of an incapacitated executor.

It is important for you to note there are many significant differences between each of the States and Territories as to the powers exercisable by a power of attorney and rules relating to the granting of Probate. Before you make any decision with respect to the appointment of executor you should seek legal advice specific to your concerns. These differences between the States and Territories were highlighted in the recent South Australian decision of In the Estate of Keith Dudley (deceased) [2013] SASC 22 . There, cross border issues were significant in determining whether a person who was resident in New South Wales, could apply for a Grant of Probate in South Australia relying upon an enduring power of attorney granted in South Australia by an executor who was resident in Queensland who had lost capacity.  

The Gold Coast is primarily populated by people who have resettled from interstate. As one of the oldest firms on the Gold Coast, Robbins Watson Solicitors has significant experience in representing clients whose affairs traverse multiple jurisdictions. If you have assets in other jurisdiction we recommend you consult us with respect to addressing the issues this creates in your estate planning requirements

CHRISTINE SMYTH – BLOG

CHRISTINE SMYTH – BLOG
October 31, 2012 /

The NSW Parliament is currently debating the Rights of the Terminally Ill Bill 2013 (referred to in the media as the Assisted Dying Bill). Euthanasia is a topic shrouded in ethical issues, polarising opinions. One of the key concerns is abuse of vulnerable people, such as children and the cognitively impaired. Of course in my area of practice I frequently deal with elderly people whose cognitive impairment is in question. This cognitive impairment makes them vulnerable to undue influence, and unconscionable conduct by people they rely upon. It is quite prevalent in the context of Inheritance Law. So it was with much interest that I note the Bill has specifically sought to address this issue, by excluding people with Dementia from having access to the proposed scheme. Of course the obvious area of concern is its impact upon wills. The Bill does contain provisions related to the making of wills, and it also contains provisions dealing with insurance policies. If passed into law, it will impact upon the ever increasing complexities associated with Inheritance Law.

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Christine Smyth features in Ipso Facto vol. 59

Christine Smyth features in Ipso Facto vol. 59
October 31, 2012 /
The Gold Coast District Law Association has recently published an article in Ipso Facto by our Christine Smyth. Christine’a article is about the dangers of using will kits or leaving a note instead of a will.

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