Succession Law Superhero

Did you hear the one about the lawyer who saved the day?

No, this isn’t another of the interminable and ‘hilarious’ lawyer jokes permeating cyberspace, but an actual case where a good solicitor, doing good work, averted disaster. Not exactly the sort of thing that the media prioritises, such as the really important things like Donald Trump tweets and the foibles of reality TV stars, but certainly a very good news story.

The case involved a lady who was 100 years old when she passed, childless and without any close relatives to lay claim to her $2 million estate. That is the sort of situation that has not-so-close relatives checking the family tree and suddenly remembering how much they loved and cared for the deceased during the dark final years. In this case it brought out Michael Anthony Kavanagh, whose grandfather was the brother of the deceased’s father.

The deceased had made many wills over her life, and Mr Kavanagh had been a beneficiary and executor in all but the last two. The deceased had removed him from the most recent wills due to her view that he had bullied and taken advantage of her in order to get himself into previous wills. Indeed, she noted in a letter to him:

“You really are a greedy lousy person Michael and I hope my ghost haunts you.”

Mr Kavanagh, on the other hand, believed that the deceased had fallen under the influence of Anne Londy, who was the executor under the new wills. The fact that Ms Londy had attended all interviews with the deceased and the solicitor was regarded by Mr Kavanagh as highly suspicious. Perhaps assuming that if he was going to be haunted anyway, he may as well have the money too, he went to court to try and prevent the distribution of the estate.

It might well have turned into a torrid and expensive re-run of Dickens’ Bleak House, exhausting the estate via the costs of litigation, but the solicitor involved was on the ball and went to great lengths to ensure everything was above board, including doing the following:

· taking thorough and meticulous file notes

· regularly having the deceased’s capacity independently assessed

· giving detailed advice as to the consequences of the deceased actions, and advice as to how to ensure that her wishes were carried out after her death

· always confirming instructions in writing

· preparing, and having the deceased execute, a detailed affidavit which described her estate fully and thoroughly explained her relationship with the respondent, the reasons she had previously included him in her wills and the reasons she wanted him out at this juncture.

Long story short, the actions of the solicitor ensured that the deceased’s intentions were carried out to the letter and that the will was not vulnerable to opportunistic challenge — a great result from good lawyering. The case in question is Londy & Pender as executors and trustees of the Will of Mary Hilary Kavanagh (deceased) v Kavanagh [2017] QSC 161, and if you haven’t heard of it and want the full details, check out QLS Immediate Past President Christine Smyth’s article on it in the November 2017 issue of Proctor.

Keeping up to date with the latest cases is an ethical imperative for solicitors, and especially those practising in the world of Succession, Elder and Inheritance Law, one of the fastest-growing practice areas in the country. With the rise in estate litigation and clients opting for more complex and bespoke estate plans, it is easy for even very experienced succession lawyers to struggle to keep up.

Any practitioner keen to hear about the latest cases in succession and estate law, and keep their skills and knowledge current, should attend the Succession Law Strand Key Updates: Case Law and Legislation session at QLS Symposium.

The session will be chaired by QLS Immediate Past President Christine Smyth, one of Australia’s leading Succession and Estate Lawyers and a QLS Accredited Specialist in Succession Law. Christine will lead fellow Accredited Specialist and succession lawyer Karen Gaston (Partner, Thynne + Macartney) and Clare Endicott, Sessional Member, Queensland Civil and Administrative Tribunal, in an in-depth and informative discussion on new legislation and recent cases in this highly specialised area.

QLS Symposium is the premier event for Queensland’s legal profession. Held on 9–10 March 2018, hear from leading experts as they discuss planning for, embracing and thriving in the complexity of legal practice