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BUNDLE

Family Law, Estates (QLD) and Conveyancing (QLD)

This bundle includes guides from the following three publications. 

 

Recent updates can be viewed on Obiter - our our News & Updates site.. 

Family Law


A comprehensive and easy to follow guide to Family Law in the Family Court of Australia and the Federal Circuit Court, with our valuable reference work "101 Family Law Answers". 

This publication also provides all commonly required precedents, including applications, affidavits and orders, plus correspondence.


The guide covers all aspects of a Family Law matter, from negotiations prior to commencing proceedings to interim applications, then preparation and conduct of final hearings and enforcement. The commentary includes the conduct of interim hearings and conciliation conferences, together with tools for analysing contributions and s 75(2) factors.


Some of the most popular precedents provided in this publication include:



  • Consent orders

  • Initial letter to client with costs agreement and copy letter to spouse

  • Initial pre-action letter to spouse

  • Financial agreement s 90C - After separation

  • Parenting plan

  • Affidavit - Separation under the one roof

  • Summary of assets and liabilities


Estates (QLD)


This comprehensive and practical guide assists practitioners to advise and act for clients in all types of estate matters.


An application for probate or letters of administration can be made with ease and confidence. The guide features detailed commentary and all necessary forms and precedents for obtaining a grant, getting in assets and making the distribution. Deeds of release and indemnity and deeds of family arrangement are included.


Conveyancing (QLD)


A complete matter management solution so that conveyancers and support staff can run a busy conveyancing practice. Each step in the transaction is set out in sequential order with all of the required precedents and commentary in the one place. 

Commentary covers issues that arise regularly and the more complex issues that arise from time to time. Includes reference manual, 1001 Conveyancing Answers.


Some of the most popular precedents included in this publication:



  • Letter to seller's solicitor submitting transfer

  • Letter to buyer's solicitor returning signed transfers

  • Settlement notice

  • Letter to buyer after settlement

  • Initial letter to seller's solicitor

  • Disclosure notice

  • Order on the agent

  • Letter to buyer enclosing CSA and disclosure notice

  • Letter to council paying rates

  • Settlement instructions sale with mortgagee

  • Client service agreement (CSA)


 



MATTER PLAN
  • “ Granting someone the power to act as an attorney means that they step into the shoes of the grantor, the ‘principal’, and can do on behalf of the principal anything that the principal can legally do, provided that only they act bona fide in the principal’s interests. It is common for a person to ... ”
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    • “ The term ‘ademption’ refers to the situation where a specific gift to a named beneficiary in a will is defeated – adeemed – because the property which is the subject of the gift no longer exists. This might apply where a testator makes a specific gift of a property to a beneficiary, but then after ... ”
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    • “ Administration of estates is provided for in Part 5 of the Succession Act 1981. An executor, being the person or persons named in a will as being the trustee/s of the estate or any administrator to whom letters of administration are granted is entitled to administer an estate, which means getting ... ”
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    • “ Any need to apply A grant of either probate where there is a valid will, or letters of administration where there is no will or no valid will, is not always required. There is no legislative requirement to apply for a grant in every case. ”
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    • “ An application may be made to the Supreme Court to revoke a grant of probate or letters of administration: r 642 Uniform Civil Procedure Rules 1999. Section 6(1) of the Succession Act 1981 provides: ‘the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the ... ”
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    • “ Beneficiary in possession of estate property It is the duty of the executor or administrator to get in the estate, including any property held by beneficiaries. If the beneficiary wants to retain the property it can be transferred to them in specie, as part of their entitlement under the will, but ... ”
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    • “ Real property Request to record death ”
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    • “ Claims by a beneficiary A beneficiary who believes there is a problem with the will, such as a contention that the deceased did not have capacity when the will was made, should be advised by the estate solicitor to seek independent advice. ”
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    • “ See – Death – Presumption of Death, below. ”
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    • “ A bequest is a gift or legacy under a will. ”
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    • “ It is quite common for a will to include some directions as to how the testator wishes their remains to be disposed of, or even their detailed wishes for the conduct of a funeral service. Such statements are non-binding. At common law a direction in a will about the funeral, burial or cremation is ... ”
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    • “ See also Beneficiaries – Claims by a beneficiary above. Challenges to a will on the grounds that the executor lacked capacity are rarely successful. ”
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    • “ A caveat can be filed by anyone claiming to have an interest in the estate: r 624 of the Uniform Civil Procedure Rules 1999. If the caveator has evidence, then the court will resolve the claim before granting probate. The lodging of the caveat has the effect of preventing anyone from being granted ... ”
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    • “ A codicil is a document that amends, rather than replaces, a previously executed will. The will and codicil will need to be read together to determine if the testator appointed an executor, and if so who the executors and any substitute executors are, and what the terms of the will are. If the ... ”
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    • “ If there is more than one executor then their powers are to be exercised jointly: s 49(4) of the Succession Act 1981. They need to consult with each other on any action that concerns the estate’s administration. The testator is free to nominate as many executors as they choose. However, there is a ... ”
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    • “ Section 68 of the Succession Act 1981 allows the court to authorise payment from the estate to the legal personal representative of commission for their services in administering the estate. Section 101 of the Trusts Act 1973 also provides that the court may authorise any person to charge such ... ”
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    • “ Ability of executor to intermeddle In some circumstances it may be advantageous for the estate if a contract is entered into before the formal grant of representation is obtained. An executor may elect to do so, which would constitute ‘intermeddling’ with estate assets and is perfectly permissible. ”
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    • “ Costs of an application for probate by the executor will always be payable by the estate. Costs of an application for letters of administration will generally be payable by the estate where the application is granted. ”
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    • “ The Supreme Court has jurisdiction, both by virtue of Division 4 of Part 2 of the Succession Act 1981 and as part of its inherent jurisdiction, over wills and estates. An executor is a trustee until the estate is fully administered and may also be the trustee of ongoing specific testamentary trusts ... ”
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    • “ Causes of action survive death The general rule is that death does not affect the legal rights and obligations of the deceased: see s 66 of the Succession Act 1981, which extends to all causes of action except defamation or seduction. However, the section limits the damages which can be recovered ... ”
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    • “ If one executor dies before a grant is made then, unless the will says otherwise, the surviving executors can and should proceed. An executor, once appointed as legal personal representative, will undertake executorial duties in the first instance and then, if the will creates a trust, will be a ... ”
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    • “ Where the testator has made no provision in the will for an alternate or substitute executor and the executor named in the will dies before a grant of probate is obtained, then the position is the same as if no executor had been appointed: see s 47(1A) of the Succession Act 1981. If the executor ... ”
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    • “ An executor may delegate functions relating to the administration of an estate but cannot delegate executorial duties. The executor may appoint a solicitor to represent the estate and apply for a grant of representation in the name of the executor and may appoint accountants to assist in ... ”
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    • “ The following are the main types of a grant of representation: grant of probate (will); ”
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    • “ A hotchpot clause is used to take account of inter vivos gifts or loans, usually, to the deceased’s children, so that when combined with the gifts to those children under the will, they all end up with the same benefit. The formal doctrine of Hotchpot which applied to intestacy was abolished in ... ”
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    • “ The court can grant administration of an informal will. See Wills – Informal wills below. ”
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    • “ See also Contracts entered into or completed before probate or administration is granted above. Intermeddling means a named executor dealing with the estate’s assets before a formal grant is made. There is nothing inherently wrong with this. It is not provided for in legislation – it is a common ... ”
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    • “ Division 5 of Part 2 of the Succession Act 1981 deals with general rules about interpretation of wills and also particular provisions in wills. These all apply provided there is no contrary intention expressed in the will. In proceedings to construe a will, evidence, including evidence of the ... ”
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    • “ Although upon the death of a joint proprietor the proprietary interest is lost to the surviving joint tenants, together with the obligation to contribute to the mortgage, the estate may remain liable under any personal covenants of a mortgage. ”
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    • “ See Assets of the estate – Joint ownership of assets above. On the death of a joint tenant the interest of that joint tenant in the land ceases and the other joint tenants automatically own the whole of the land. This is known as the doctrine of survivorship. For this reason, property which the ... ”
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    • “ See Court – Jurisdiction and judicial advice above. ”
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    • “ As discussed in the English Court of Appeal decision in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033, the case of Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 stated at [82]: …a person involved in the preparation or execution of a will, or charged with responsibility as an ... ”
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    • “ Property Law Act 1974 Succession Act 1981 ”
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    • “ See Applications for a grant of probate or letters of administration above. ”
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    • “ A life estate is a proprietary interest in real property, capable of being registered on title. Such a right entitles the proprietor to lease the estate to a tenant and retain any such rent. A ‘right of occupancy’ or similar is a conditional personal right, not capable of being registered and ... ”
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    • “ A life tenancy, or life estate, is a proprietary interest in real property, capable of being registered on title. In the context of a trust creating a life tenancy, the party who holds the property is known as the trustee and the beneficiary is known as the life tenant. In addition to these two ... ”
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    • “ One of the duties of an executor or administrator of an estate is to manage and, if possible, compromise any claims against the estate. That can be an onerous duty, involving a difficult balancing exercise between the merits and likelihood of success of the claim and the necessity of minimising the ... ”
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    • “ It is possible – and not entirely uncommon – to obtain a grant for probate or administration based only upon a copy of a missing will: see In the Will of Valerie Eve Robson (deceased) [2020] QSC 52. See also Williamson v Pay [2020] QSC 66. Affidavit evidence will be required as to the circumstances ... ”
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    • “ The ‘personal representative’ of the estate is either the executor named in a will or the administrator granted letters of administration by the court: see the definition in s 5 of the Succession Act 1981. ”
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    • “ Section 52(1) of the Succession Act 1981 sets out the duties of the personal representative. The personal representative is under a duty to collect the estate assets and administer the estate according to law. ”
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    • “ Section 44 of the Succession Act 1981 provides that an executor or administrator of an estate is protected from personal liability for family provision claims if they distribute the estate more than six months after the date of death without having received any written notice of a family provision ... ”
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    • “ See Assets of the estate above. ”
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    • “ Section 33 of the Succession Act 1981 provides that the court may make an order to rectify a will if the court is satisfied that the testator’s intentions would not be carried out due to either a clerical error or that the will does not give effect to the testator’s instructions. Applications for ... ”
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    • “ There is no compulsion upon someone to accept the role as executor. The named executor, or one of multiple named executors, may renounce their office before any application for a grant is made. If the sole executor renounces and there is no alternative, the Public Trustee may be asked to step in. ... ”
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    • “ Section 6 of the Succession Act 1981 provides the court’s power to revoke a grant and to remove and replace a personal representative. See Baldwin and Neale v Greenland [2006] QCA 293. See also Otto v Redhead & Anor [2008] QSC 280 at [18] – [23]; Otto v Redhead & Ors [2009] QCA 147. ”
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    • “ See Renunciation as executor above. ”
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    • “ See Application to revoke a grant of probate or letters of administration above. ”
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    • “ The starting point for making wills is the idea of freedom of testamentary intention; that is the idea that a person should be able to leave their estate to whomever they choose. In Banks v Goodfellow (1870) LR 5 QB 549, at 564, Cockburn CJ said: … the power of disposing of property in anticipation ... ”
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    • “ Section 41(1) allows the court to make such provision for the deceased’s spouse, child or dependant as the court sees fit, but only if adequate provision has not been made for them under the will or the intestacy provisions. In Hills v Chalk & Ors (as executors of the estate of Chalk (deceased) ... ”
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    • “ Adopted children are in the same category for family provision claims as a natural child: s 40 Succession Act 1981. ”
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    • “ Claims by adult children against an estate are perhaps the most common type of family provision claim. In Lambert v Lambert [2018] QSC 304 the court noted that: ”
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    • “ In Vigolo v Bostin [2005] HCA 11 the High Court considered, under the Western Australian legislation, the effect of a purported promise by the deceased that his son, from whom he became estranged, would inherit the deceased’s farm on his death. The court did so in the context of the relevance of ... ”
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    • “ In the unfortunate circumstances of an appeal which should never have been necessary, the Supreme Court in Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 considered and granted an application by a disabled adult child for provision brought on his ... ”
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    • “ See Curnow v Curnow [2014] NSWSC 896 and Busuttil v DeGabriele [2013] VSC 215 for examples of successful applications by adult stepchildren. See Freeman & Ors v Jacques [2005] QCA 423 where Keane JA said: ”
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    • “ It is not necessary for an application for a grant of probate or letters of administration to be made at or before the time an application for family provision is made. Section 41(8) of the Succession Act 1981 provides: ”
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    • “ A ‘spouse’ is an eligible person to bring a claim for family provision under s 41 of the Succession Act 1981. Section 5AA of the Act defines spouse to include a civil partner, as defined in Schedule 1 of the Acts Interpretation Act 1954, which in turn requires the civil partnership to be registered ... ”
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    • “ The usual position that costs follow the cause is not necessarily the case in family provision litigation. Sometimes a claimant will be unsuccessful but will have their costs paid out of the estate. The plaintiff may be required to pay the estate’s costs where the claim has no merit, or the estate ... ”
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    • “ A ‘spouse’ is an eligible person to bring a claim for family provision under s 41 of the Succession Act 1981. Section 5AA(1) of the Act defines spouse to include a de facto partner as defined in s 32DA of the Acts Interpretation Act 1954. However, s 5AA(2) provides that the person also needs to ... ”
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    • “ Section 40 provides: “dependant” means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being – ”
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    • “ Section 41 of the Succession Act 1981 requires the court to exercise a discretion. This means that agreements for provision under the Act require approval of the court. In Wight v Wight as legal personal representative of Mark Lynton Wight deceased [2019] QSC 149 North J considered the jurisdiction ... ”
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    • “ In Official Receiver in Bankruptcy v Schultz [1990] HCA 45; (1990) 170 CLR 306, at 315-316, dealing with s 41 Succession Act 1981 (Qld) the court stated: ‘The wide powers conferred by s 41 and the manner in which sub-s. (10) is expressed strongly suggest that the effect of an order under the ... ”
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    • “ Before the court applies the two-stage test the person must be eligible to make a claim. Section 41 of the Succession Act 1981 provides for an ‘application by or on behalf of… [a] spouse, child or dependant’. Section 40 provides for the following definitions: ”
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    • “ See also Adult children above. In Mortimer v Lusink & Ors [2016] QSC 119 Martin J discussed estrangement in a case where the applicant had not seen the deceased for 50 years: ”
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    • “ Section 41(8) of the Succession Act 1981 provides that: Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the ... ”
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    • “ Regarding the interplay between family provision claims and previous family law property orders, see for example Dark v Dark [2016] NSWSC 1223, which dealt with a claim by a widow who was separated from the deceased at the time of his death, where a financial agreement made under s 90C of the ... ”
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    • “ See Adequate provision above. ”
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    • “ Grandchildren are not specifically eligible persons under the Succession Act 1981. An applicant who is a grandchild of the deceased would need to show that at the time of their grandparent’s death they were ‘wholly or substantially maintained or supported’ by that grandparent. In Bowditch v NSW ... ”
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    • “ Pursuant to s 41 of the Succession Act 1981 the court can make family provision orders in relation to the estate of a deceased person whether testate or intestate. In the case of intestacy, any natural-born or adopted child of the deceased has an entitlement to share in their parent’s estate. Both ... ”
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    • “ Part 4 of the Succession Act 1981. ”
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    • “ Any claim for family provision must be filed within nine months of the date of death: s 41(8). The court can, at its discretion, allow a claim out of time. See Extension of time above. ”
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    • “ A stepchild is in the same category for family provision claims as a natural child: see s 40 and s 40A Succession Act 1981. The age at which a claimant becomes a stepchild does not preclude the entitlement to bring a claim: Freeman & Ors v Jacques [2005] QCA 423. ”
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    • “ Where the estate is sufficient to allow it, appropriate provision for the maintenance and advancement of a surviving spouse will generally be unencumbered accommodation – usually the residence shared with the deceased, or its equivalent – plus a fund to ensure they are cared for and may live in the ... ”
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    • “ Granting someone the power to act as an attorney means that they step into the shoes of the grantor, the ‘principal’, and can do on behalf of the principal anything that the principal can legally do, provided that only they act bona fide in the principal’s interests. It is common for a person to ... ”
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    • “ An advance health directive is a document containing directions for a principal’s future health care and special health care and may authorise an attorney to do particular things for the principal in relation to health care: s 5 Powers of Attorney Act 1998. Section 42 allows a principal to give ... ”
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    • “ Section 7(2) of the Act provides that from the date of commencement the Act applies to all powers of attorney, whether made under the Act or otherwise. A general power of attorney created before the Act commenced is deemed to be a general power of attorney under the Act and therefore older powers ... ”
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    • “ An attorney is a person who is authorised to make particular decisions and do particular other things for another person: s 5 Powers of Attorney Act 1998. More than one attorney can be appointed and they can act jointly or severally, depending on the terms of appointment specified in the document. ... ”
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    • “ ‘Capacity’ is defined in Schedule 3 to the Powers of Attorney Act 1998. The definition is mirrored in the Guardianship and Administration Act 2000. The General Principles set out in both Acts provide that an adult is presumed to have capacity. ”
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    • “ The Act applies to natural persons, not corporations. A corporation may expressly or impliedly authorise an agent to enter into a contract on its behalf and the corporation has all the powers of a legal person, such as the power to grant a power of attorney recognised by the common law, but not ... ”
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    • “ Death of a principal The death of the principal immediately revokes the power of attorney and it cannot be used: see s 19 of the Powers of Attorney Act 1998. ”
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    • “ An attorney for financial matters may execute a superannuation death benefit nomination on behalf of the principal: Re SB; Ex parte AC [2020] QSC 139 at [35] – [45]. ”
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    • “ An attorney cannot appoint a substitute, sub-attorney or delegate, unless the instrument creating the power expressly provides for the attorney to do so. It is prudent for principals to appoint an alternate attorney in case the first nominee becomes unavailable or incapable. ”
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    • “ Although most company constitutions permit the appointment of an alternate director, it is very unusual that they would permit the appointment of an attorney by a director to perform the director’s duties. A general power of attorney by a director, that is an appointment under the Act, does not ... ”
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    • “ An enduring power of attorney is distinct from a general power of attorney. It is a prescribed power of attorney as provided for in s 32 of the Powers of Attorney Act 1998, in or to the effect of the form specified in s 44. An enduring power of attorney continues to have effect even if the ... ”
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    • “ A power of attorney must be executed by the principal signing in front of a prescribed witness. Any document signed by the attorney under the power of attorney ‘must be executed in a way showing that the attorney executes it as attorney for the principal’: s 69(2). Section 69(2) was extensively ... ”
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    • “ The executor or administrator of an estate cannot delegate the functions of their office and therefore cannot appoint an attorney to act on their behalf as executor. ”
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    • “ The formal requirements for powers of attorney are set out in s 44 of the Powers of Attorney Act 1998. To create a general power of attorney the approved form may be used and otherwise the instrument must be in substantially the same form. ”
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    • “ A general power of attorney in or to the effect of the form specified in s 11 of the Act, which is reflected in the approved Form 1, grants the powers under s 8 of the Act for a person to do on behalf of the principal anything that the principal can lawfully do by an attorney. A general power of ... ”
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    • “ Section 6A of the Powers of Attorney Act 1998 provides that the entire Act is to be read in conjunction with the Guardianship and Administration Act 2000 and where there is an inconsistency between the two the Guardianship Act prevails. This effectively means that where a person has appointed an ... ”
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    • “ A power of attorney only authorises the attorney to make decisions and act on financial matters, not health matters. An advance health directive made under s 42 of the Powers of Attorney Act 1998 is required to allow the attorney to make decisions relating to ‘health matters’ as defined in ... ”
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    • “ Impairment of a principal Section 18 of the Powers of Attorney Act 1998 provides that if a principal becomes a person with ‘impaired capacity’ then the power of attorney is revoked. However, this does not apply to enduring powers of attorney – see s 32 (2). ”
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    • “ This term relates to the situation where a person cannot communicate in relation to their property or their affairs: see s 18 Powers of Attorney Act 1998. This may or may not mean that they are also a person with impaired capacity which would result in the power of attorney being revoked. If they ... ”
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    • “ Insolvency of a principal As a general rule, the appointment of an attorney by an insolvent principal will be ineffective, as the insolvent person has lost the legal ability to control their affairs. Equally, a power of attorney given by a principal who subsequently becomes insolvent will cease to ... ”
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    • “ An interstate power of attorney is valid in Queensland if it is valid under the laws of the state or territory in which it was made, but it does not operate to confer power on an attorney in Queensland which cannot be conferred on an attorney under Queensland law: s 34 Powers of Attorney Act 1998. ... ”
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    • “ A power of attorney given for security may be expressed to be irrevocable: s 10 Powers of Attorney Act 1998. There is no provision in the prescribed form to make an appointment irrevocable and it is not possible to do so by simply completing and executing the form. The critical factor for an ... ”
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    • “ Powers of Attorney Act 1998. ”
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    • “ There is no prescribed wording for, nor restriction upon, the limitations that may be placed in a power of attorney document. ”
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    • “ A liquidator may appoint an attorney to act on behalf of the liquidator in the administration of the company: Australian Guarantee Corporation Ltd v Registrar of Titles (1992) 7 ACSR 577. ”
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    • “ Without an advanced health directive, an attorney cannot make decisions about health matters for the principal. See Advance health directive and Health matters above. ”
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    • “ The Act defines the person giving the power of attorney as the ‘principal’; terminology which evokes the agency relationship that has always underpinned the law in respect of powers of attorney: Schedule 3 Dictionary. ”
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    • “ The Power of Attorney Act 1998 at Schedule 1 contains both General Principles and Health Care Principles which apply to powers of attorney. These are mirrored in the Guardianship and Administration Act 2000. ”
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    • “ The Supreme Court and the Queensland Civil and Administrative Tribunal have concurrent jurisdiction to review the operation of enduring powers of attorney on the application of the principal or interested persons under s 109A and s 110. See also Capacity above. ”
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    • “ The Powers of Attorney Act 1998 provides for revocation of both a general power: Part 3 of Chapter 2, and an enduring power: Part 5 of Chapter 3. A principal may revoke an enduring power of attorney at any time, as long as they have the capacity to do so. There are formal requirements and approved ... ”
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    • “ A statutory health attorney is a person authorised by the Powers of Attorney Act 1998 to do particular things for a principal in particular circumstances in relation to health care: s 5. ”
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    • “ Section 87 of the Act provides for a presumption of undue influence in any transaction between a principal and any attorney under an enduring power of attorney or advance medical directive or the relation, business associate or close friend of the attorney. See Anderson v Anderson [2013] QSC 8 and ... ”
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    • “ Who can be a witness? The Act does not specify any requirements as to who can witness the execution by the principal of a general power of attorney. Accordingly, any person can be a witness, although common sense, the potential need to be able to prove the execution if necessary and the avoidance ... ”
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    • “ The creation and construction of wills in Queensland are covered by the provisions of the Succession Act 1981. Formal requirements are prescribed for a will to be valid, namely that it must be in writing, signed by a testator who has capacity and also signed by at least two witnesses, both of whom ... ”
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    • “ Administration is dealt with in Part 5 of the Succession Act 1981. Both an executor, by a grant of probate, and an administrator, pursuant to letters of administration, have power to administer an estate, which means getting the assets in, paying the debts and distributing the estate according to ... ”
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    • “ Alterations to a will are permitted by s 16 of the Succession Act 1981. By their very nature, alterations are presumed to have happened after execution. Alterations are only effective if they are executed in the same way that a will is required to be executed, or in accordance with a court order. ”
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    • “ Age qualification for beneficiaries A testator may seek to postpone a beneficiary’s right to a bequest until the beneficiary attains a certain age by providing in the will that the beneficiary’s share is to be held in trust until they attain that age. This is often appealing to the parent of a ... ”
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    • “ An executor has a common law right to possession of the body of the deceased. An administrator does not have the same right. This is consistent with the executor’s burden of burying the deceased, which an administrator does not have. As a practical matter, the distinction probably developed because ... ”
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    • “ If a will is rational on its face and is proved to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of evidence to the contrary, to have been made by a person of competent understanding: Timbury v Coffee [1941] HCA 22. Although the testator’s treating ... ”
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    • “ See Beneficiaries above. ”
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    • “ People are free to enter into contracts to leave property by will. See the precedent Contract to Make Mutual Wills in the Wills matter plan. The deed should be specific as to the reasons for the agreement. Like any other contract, the parties will be held to their agreement, unless there are ... ”
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    • “ The Supreme Court has the power, on the application of any person, to authorise the making or alteration of a will on behalf of persons lacking testamentary capacity, including a minor: Part 2, Div 4, Subdivision 3 Succession Act 1981. Such wills are often known as statutory wills. There is no ... ”
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    • “ Section 18 of the Succession Act 1981 provides that the court may dispense with the usual execution requirements for the making of a will, altering a will, or revoking a will, if the court is satisfied that the document purports to state the testamentary intentions of the deceased and that the ... ”
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    • “ See Division 5 of Part 2 of the Succession Act 1981 for the rules applicable to disposition of estate property. ”
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    • “ If the testator, having made a will while married, then divorces or has the marriage annulled, any appointment of the former spouse as an executor in the will is revoked, unless a contrary intention appears in the will: s 15 Succession Act 1981. Any beneficial gift to the former spouse is also ... ”
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    • “ It is permissible to have more than one will. This may be the case where the testator has assets in two or more different jurisdictions, typically Australia and another country. In fact, if the assets are substantial, or consist of real property, then a will in each jurisdiction will be required; ... ”
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    • “ Section 10 of the Succession Act 1981 provides for how a will is to be executed, namely that it must be in writing, signed by the testator and also signed by at least two witnesses, both of whom must actually be present and see the testator sign. See Witnesses below. Note that Schedule 1 of the ... ”
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    • “ Wills with a foreign connection are dealt with by Division 6 of Part 2 of the Succession Act 1981. Wills executed properly according to the law of another country are deemed to be properly executed in Queensland: s 33T. ”
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    • “ A will is revoked by marriage, unless it is made in contemplation of a particular marriage: s 14 Succession Act 1981. The question then arises, and sometimes needs to be judicially answered, as to whether or not the will was in fact made in contemplation of marriage. See for example Tolson v Hender ... ”
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    • “ Section 18 of the Succession Act 1981 provides that the court may dispense with the formal execution requirements for the making of a will, altering a will or revoking a will. The section applies to a ‘document’, which is defined in s 5 by reference to the Acts Interpretation Act 1954. Audio and ... ”
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    • “ Howe v Fischer [2014] NSWCA 286 was a successful appeal from Fischer v Howe [2013] NSWSC 462, in which a solicitor was found negligent for not, inter alia, having ensured the elderly will maker executed an informal will pending finalisation of the execution of her formal will. Damages were awarded ... ”
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    • “ See also Foreign wills above. International wills are recognised under Division 6A of Part 2 of the Succession Act 1981. A will made in a foreign country is valid in Queensland if it is executed in accordance with the requirements of the law of that other country. The provisions of the Act that ... ”
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    • “ Division 5 of Part 2 of the Succession Act 1981 deals with general rules about interpretation of wills and also particular provisions in wills. These all apply provided there is no contrary intention expressed in the will. In proceedings to construe a will, evidence, including evidence of the ... ”
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    • “ Acts Interpretation Act 1954 Cremations Act 2003 ”
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    • “ A will is revoked by marriage, unless it is made in contemplation of marriage: s 14 Succession Act 1981. See Revocation below. ”
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    • “ Pursuant to s 9(1) of the Succession Act 1981, a will made by a minor, that is a person under 18 years of age, is not valid. However, there are several exceptions to this rule, namely: A minor may make a will in contemplation of marriage, but the will has no effect if the marriage does not occur: ... ”
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    • “ It is possible to have multiple wills in multiple jurisdictions. An overseas will can be valid and effective to deal with the testator’s assets in that other jurisdiction at the same time as a Queensland will is valid and effective to deal with the testator’s assets in Queensland. Each will deals ... ”
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    • “ What makes wills ‘mutual’, rather than merely ‘reciprocal’, is the inclusion of a term in the agreement that a will is not to be revoked. In Birmingham v Renfrew [1937] HCA 52 a husband and wife made such an agreement in circumstances where she had inherited money from an uncle and wanted it to go ... ”
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    • “ Badenach v Calvert [2016] HCA 18: In the circumstances of this case the High Court held that the solicitor did not owe a duty of care to the beneficiary in the will. ”
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    • “ A testator may be bound to honour a promise to make someone a beneficiary in their will, or to leave certain property to a certain beneficiary, if the promisee has relied on that promise. See Delaforce v Simpson-Cook [2010] NSWCA 84 ”
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    • “ Any property personally owned by the testator in Queensland can be disposed of in a will made in Queensland. That extends to property to which the testator’s legal personal representative – executor or administrator – becomes entitled in the capacity of legal personal representative, after the date ... ”
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    • “ Section 33 of the Succession Act 1981 provides the court may make an order to rectify a will if the court is satisfied that the testator’s intentions would not be carried out either due to a clerical error, or because the will does not give effect to the testator’s instructions. Applications for an ... ”
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    • “ Division 3 of Part 2 of the Succession Act 1981 deals with revocation of a will. A will is revoked by: ”
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    • “ See also Capacity and Negligence – Solicitor’s duty of care above, and Witnesses below. As executor ”
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    • “ See Court made wills above. ”
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    • “ Where a will is executed under apparently suspicious circumstances the onus of proving that there are not suspicious circumstances is borne by the person propounding the will. Probate will not be granted unless the propounder allays those suspicions: see Vernon v Watson [2002] NSWSC 600 at [3]. ... ”
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    • “ Section 33B of the Succession Act 1981 states that beneficiaries to whom a disposition of property is made in a will must survive the testator by 30 days, otherwise they are deemed to have predeceased the testator. However, that section does not apply where there is a clear expression in the will ... ”
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    • “ See Capacity above. ”
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    • “ Section 33Z of the Succession Act 1981 lists the people who are entitled to see the will, including a purported will or revoked will, after the testator has died. A solicitor’s lien over a client’s documents in respect of unpaid fees does NOT extend to a will: Hawkins v Clayton (1988) 164 CLR 539. ”
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    • “ Attending witnesses for execution, revocation, amendments Section 10 of the Succession Act 1981 provides that there must be two or more witnesses to a will and they must both be present when the testator signs the will, then they must both sign the will attesting to the fact that they saw the ... ”
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