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Another form of ladder holding, or supporting our colleagues, can be helping them when they seem to have a different lad...
05/06/2026

Another form of ladder holding, or supporting our colleagues, can be helping them when they seem to have a different ladder to other people. Some people are given a more complete ladder due to their connections, their upbringing, or just dumb luck.

I was just discussing with hubby that I had watched a reel about Ken Jennings and Brandon Sanderson (Jeopardy guy and prolific fantasy writer) being flat mates in college, and Ken was joking about how initially he thought, well at least I am the second nerdiest person in the apartment. In the end, he was the second most successful person in the apartment. He commented that Brandon is doing so well for himself he now has his own jet.

I said to my husband this is not just a funny anecdote, but the reality of success. Some people are better connected. What connections helped these two? I have no idea. But I am 200% sure that it is not an accident that two college flat mates reached such success when in reality there are a lot of really clever writers, speakers or performers out there. Was it their families that knew enough to get them into a great college, was it connections at the college itself, was it what they were taught at that college, was it something learned before college but learned by most people who do indeed get into that quality of college? Brandon Sanderson was a biochemisty major who swapped to English Literature, for most people that would be a questionable move unless they wanted to teach. Ken Jennings also spoke about a particular job that Brandon had in college that was a night shift, so he had hours to write. There were a lot of parts that went into this successful whole.

When we have success, when we figure out the way to climb, we can help others by telling them about our ladder. We can help them with their incomplete ladder, and then yes hold it and cheer them on as they climb it. We don't have to drag them up. We don't have to check in with them every day or every week. Sometimes it really is as simple as explaining what rung is missing, and where to find it. We all have people in our lives who provide this for us. I hate to name people, cause I am excluding others and I have been the benefactor of so much help, but I have been blessed by so many people who have done this for me. I just wanted to encourage others to do the same.

04/06/2026

In this week's newsletter we will look at the recent case of Wright v Wright, which starts with this warning -

To put it bluntly, an application for a family provision order is not an appropriate vehicle through which to seek judicial vindication of vitriolic views of one’s sibling(s).

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02/06/2026

In today's Webinar as well as looking at the Initial Consultation, and how we get the client to engage with the POA without overwhelming them, we will also be looking at ten recent cases in the area of POAs or capacity.

In one case, Singer v No Defendant [2026] NSWCA 38, we answer the question, can a certificate under s 19(1)(c) of Powers of Attorney Act 2003 (NSW) be added later, or must it be given contemporaneously? After failing to lodge a POA with LRS the applicant commenced proceedings in the Supreme Court seeking the advice and direction of the Court as to whether the Instrument created a valid enduring power of attorney. The primary judge held that it did not.

On appeal the court held that the certificate must be given contemporaneously. However, it can be inferred from the available evidence that, at the time the document was executed, there was a common intention by all parties to effectively create an enduring power of attorney which, through a common mistake, was not reflected in the document due to the mistaken omission of the prescribed statement. The Instrument should be rectified in equity to include that prescribed statement.

It was however complicated, and Griffiths AJA was right to note that "The importance of practitioners being vigilant in ensuring that the formal requirements of the Act be met cannot be overemphasised. Rectification is appropriate in the particular circumstances of this case. This remedy will often not be available to redress a failure to adhere to the strict requirements of the Act."

27/05/2026

In the recent matter of D'Apice v Passas (No2) [2026] NSWSC 570 the Court was asked to rule on a number of things, but one thing that caught my eye was the issue of internal inconsistencies in the documents. As an example, the Will stated that the deceased wanted to treat the two daughters equally, and then proceeds to leave everything to one daughter.

The basis for the relief sought by the Plaintiff (LOA with the earlier Will annexed) was that the 2012 Will was made in “suspicious circumstances” and thus the Defendant (the sister who was inheriting everything) has the burden of removing the suspicion and proving affirmatively the deceased knew and approved its contents. While I have no statistics on the issue, it seems there has been a real spike in "knew and approved of its contents" cases recently.

In this case the Will was duly executed, and everyone seemed to agree that the testator was sharp as a tack. Her Honour felt that the Plaintiff had not shown that there were suspicious circumstances that might suggest that the testator did not know and approve of the contents of the Will. In particular, in the clause where the entire Estate is gifted to the Defendant, the testator states that he is not providing for the Plaintiff because he had done so at other points in his life. There was significant factual evidence about the provision made for the Plaintiff during the testator's life, the Plaintiff did object to some of the provision that was listed but ultimately the Court found that the testator had in fact provided for the Plaintiff during her life. This was significant for the finding that there was no internal inconsistency (as well as the later finding about the family provision claim). Her Honour found that taking the clause as part of the whole clause, and the whole will, the word equally referred to gifts during the life of the testator as well as gifts made in the will.

While the outcome was not that this sentence caused the Will to be set aside, it is a reminder that drafting that is technically correct can cause unnecessary arguments.

His Honour looked to Tobin v Ezekiel on the issue of knowledge and approval, nothing that upon proof of due ex*****on and testamentary capacity there is a presumption of knowledge and approval. The presumption may be displaced by a "well-grounded suspicion or doubt" as to whether the will expresses the mind of the testator. Evidence that the testator gave instructions for the will, or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge.

There were a number of other issues in this case that I will also post about in coming days including issues with the Court Book, a lengthy list of objections that took most of a day to deal with, a back up Family Provision Claim, a statutory declaration sworn two years after the Will, and a number of other facts that were put forward as suspicious circumstances like changing solicitors, age of the testator, using the common (not formal) name of the daughter, and not having the Will written in the first language of the testator.

21/05/2026

So I posted yesterday about Farah v Farry [2026] NSWSC 541 (19 May 2026) and I mentioned that there was a procedural issue.

Pt 78 r 48 of the Supreme Court Rules 1970 (NSW) provides that, if there is a defendant, proceedings for the revocation of a grant of probate “must be commenced by statement of claim”. This case was brought by way of a Notice of Motion, and pursuant to the Conveyancing Act at that.

The Defendant raised no objection during the case to the procedural issue per se (but did object generally to the revoking of Probate). The Plaintiffs asked the Court to prioritise the just, quick and cheap resolution of the matter, and dispense with the requirement for a Statement of Claim under s14 of the Civil Procedure Act. The Court agreed that, because the Defendant had raised no objection to the form, and was on notice of the facts and the case against him (the purpose of the Statement of Claim and accompanying Affidavit) and since there was no prejudice, made the order dispensing with the requirements of pt 78 r 48.

20/05/2026

It is funny, I was just answering a question in my NSW Estate Lawyers group about a dispute between beneficiaries over the sale of real estate, and whether it was really a 66G or a trust dispute, and here we have a case about a dispute between Executors over the sale of real estate.

In Farah v Farry [2026] NSWSC 541 (19 May 2026) we have an application to revoke probate and to appoint an independent administrator, because of delay and lack of co-operation between executors.

This was an Estate where the parent had died in 2019, and the siblings couldn't agree on how to move forward. The proceedings started under the Conveyancing Act, the siblings were all joint Executors and had filed competing notices of motion about the orders for the sale of the property. There were initial orders in August 2025, by consent, for the appointment of an agent and solicitor to sell the property. Then a further Notice of Motion was filed this month asking for the appointment of an independent administrator because of the delays and also one of the Executors had allegedly brought contaminated landfill onto the property when he was living in it, after the death of the parent. Only two of the three Executors wanted an administrator appointed.

The court found that there had been "a complete breakdown in the relationship between the Executors, such that they are unable to co-operate or come to any consensus in respect of steps that need to be taken". As such, in order to ensure the due and proper administration of the Estate, the Court made orders for the appointment of an independent administrator.

There was also a procedural question about whether this order could be made via Notice of Motion, I will look at that tomorrow.

Just use a fixed trust, right? We are being told that the issue with discretionary testamentary trusts is choosing the b...
20/05/2026

Just use a fixed trust, right? We are being told that the issue with discretionary testamentary trusts is choosing the beneficiaries, and people should not be doing that. I could respond to that, but that isn't want I want to talk about here.

What I want to talk about here is, what else does the fixed trust fix? What else does "just a simple Will" do to your choices? Why are you making this complicate Janis, just use a simple Will, right?

The problem that I want to talk about is, simple Will or fixed trust means the assets are fixed. It means that individual assets are split up between beneficiaries, not the total value. One of the big reasons I push back against simple Wills is because of this flexibility for the beneficiaries to look at the Estate and agree between them how they want to split it up. Why wouldn't we want to give families more choice at an awful time?

Being forced to either cash everything out, or co-own with all beneficiaries, at a time that you didn't choose and cannot predict is rigid. Fixed trusts are rigid.

Will this type of arrangement be taxed, or will there be a carve out for apportioning assets? I don't know. And actually, I don't care. I still think you should use a DTT.

Death is certain, the timing of your death is not. You do not know what your assets will be, or what your beneficiaries will need. Specific gifts (I will just give the real estate to that beneficiary) are risky because, again, you don't know when you will die, and you don't know what assets you will have, or what your beneficiaries will need. Give your beneficiaries some flexibility.




A month ago someone said something to me about people who support you in your profession by holding the ladder, not nece...
18/05/2026

A month ago someone said something to me about people who support you in your profession by holding the ladder, not necessarily climbing the ladder and then pulling you up behind, but holding the ladder and encouraging you.

I have been thinking about that a lot, how many ladder holders I have had in my profession, too many to name honestly. I have always been aware that I entered the profession relatively well connected, I have always had people to call to ask "embarrassing" questions. Also one advantage of suburban law is that it is easier to form community. I have been wondering over the past few months how I can be a better ladder holder.

Sometimes being a ladder holder involves coming alongside someone when they are overwhelmed to support them, not in a cheerleader fashion (yay rah go you) but with an actual solution (here is a ladder). I know that not everyone facing a huge task wants solutions, but sometimes you need solutions from a trusted person. This willingness to share what has worked for you is such a huge part of what it is to be a professional community.

I reached out to Tara Lucke, the Queen of Estate Planning, because I was sure that I heard the phrase from her, to ask where she got it from. She doesn't remember it, but I am positive it was her. Anyway she has been a ladder holder for me, very generous with her encouragement and sharing her knowledge about what has or has not worked for her, so I will credit her.

Do I think that we are going to see a tax on Discretionary Testamentary Trusts? Yes. Am I worried? No.I am not worrie...
14/05/2026

Do I think that we are going to see a tax on Discretionary Testamentary Trusts? Yes. Am I worried? No.

I am not worried because I have always been tax agnostic. I think you cannot predict what the government will do with tax, you will pay tax one way or another, so make the decision that is best for you and for your family. This means that I have always believed that DTTs are great for reasons that have nothing to do with tax.

Some of those reasons include increased control through choosing not only the beneficiaries but also the trustees and appointors, and the opportunity for inter-generational wealth and a safety net that simply doesn't exist with a simple Will. The separate legal entity provides not only asset protection, but a straw-man for your beneficiaries (that isn't my asset) and a reason to exclude in laws from decisions (this isn't your asset, and your financial decisions don't impact this trust). You can involve an Aunt or God Mum as an Appointor so that they can keep an eye on the Trustees and step in if they need to, but if everything is going well they can just remain on the side lines. You can give the next generation a leg up by giving them a gift protected by a loan back, and again when they are under pressure to ignore the loan it isn't just their mother but also their Aunts or Uncles that they can threaten the third party with.

My main focus has always been flexibility though, flexibility in relation to timing (you don't have to decide now, just put it in the trust), flexibility in relation to who gets what (which asset), and flexibility in relation to who receives it (which beneficiary). There is also the flexibility to leave everything in the trust for other reasons, like the fact that one of the beneficiaries is in receipt of some form of pension, qualifies for a specific medical program, or is accessing some sort of social program for pensioners.

While there are some financial and tax benefits, actually most of the benefits are not financial or tax based. There are so many reasons that the separate legal entity is important, and I discuss some more of those reasons here - https://www.janisconsults.com/news/dtts-dead

One of the hardest things as an Estate Planning lawyer is convincing people that their family does not, in fact, "know w...
14/05/2026

One of the hardest things as an Estate Planning lawyer is convincing people that their family does not, in fact, "know what they want" based upon a couple of random sentences spoken here and there over the process of many years. People openly resist your advice that they need to write this down.

In our culture we are actually rubbish at verbal record keeping, important information is reduced to writing for a reason. There are cultures that do an awesome job of verbal record keeping, our's is not one of them. We don't even go to the grocery store without a written list.

It is nice when you find a case that covers your point, but of course in a more concise and direct way than you have tried to communicate.

In reading through the recent decision in Bahnik v Budimir for my weekly newsletter, I read through the previous case of the same name and found this quote. It says far more eloquently the point that I was trying to make about verbal record keeping. The full quote, taken from paragraph 49 of Bahnik v Budimir [2025] NSWSC 1595 is -

This case turns essentially on the recollection of the plaintiff and other witnesses of oral conversations and dealings with Peter many years ago, who obviously is not available to give his version of those events. I have borne in mind the well-known observations of McLelland CJ in Eq regarding the fallibility of human memory in Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 318:
.. human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

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