April 16, 2018

Enforcing guarantees - Independent evidence of mental capacity now as important as independent legal advice.


​A growing number of guarantees are being given by parents in their late 60’s, 70’s and even 80’s ... and later being challenged on the basis of lack of legal capacity. Independent evidence of legal capacity is now as important as independent legal advice.

Legal capacity the new independent legal advice

A growing area of guarantee litigation is based on questions of legal capacity.

Many loans and debt repayment obligations are being…

April 06, 2018

Conclaves - An introduction to Conclaves (esp in the NSW District Court)


Standard Orders for Hearing

The District Court of NSW “Standard Orders for Hearing” published 11 January 2016 include clauses 6-9 “Concurrent Evidence”.

They give effect to the Joint Conferences and Joint Report (“Conclaves”) and Concurrent Evidence provisions in UCPR 31.24-26 and make them the default position if expert witnesses are to give oral evidence. Joint Conferences or Conclaves and Joint Reports happen before the trial. Concurrent Evidence happens at the trial but is largely based on the Joint Conferences or Conclaves and Joint Reports.

Conclaves and Joint Reports

In NSW the Court has the power to direct expert witnesses to confer and endeavour to reach agreement (Joint Conference or Conclave) and to prepare a joint report…

April 03, 2018

Assessing testamentary capacity - Protecting your client and your firm


​Justice Kunc’s “Postcript” in Ryan v Dalton [2017] NSWSC 1007 suggesting that anyone over 70 be considered for assessment is having a major impact on solicitor’s practice in NSW.

Many solicitors are now treating this as the new standard for professional conduct and automatically referring anyone over 70, or with any signs of slowing, for an independent assessment of capacity before they execute any transaction.

A contemporaneous expert report addressing all of the relevant issues, prepared at the same time the transaction is executed, will be difficult to dispute in 10 years time based on vague witness recollections that “dad started to slow down a fair bit before he passed.”

The reasons for referral

As Justice Kunc noted: [101] “The demographic reality of an aging population means that the likelihood of challenges to wills on the ground of testamentary…

October 24, 2017

Conclaves: Court sees benefits of a facilitator


The conclusion was that the one factor most likely to predict a productive and useful Joint Conference and Joint Report was the presence of an independent experienced legal practitioner, preferably a member of the Bar, acting as a facilitator.

In the case of Coffey v Murrumbidgee Local Health District [2017] NSWSC 1441 the Defendant sought the appointment of a facilitator for a medical negligence conclave and offered to bear the…

August 29, 2017

Can an Expert address the Ultimate Issue?


The question often arises of whether or not an Expert can, or should, provide an opinion on whether the facts they are instructed to assume and the results of their own opinion lead to a…

August 07, 2017

Assessing Testamentary Capacity at Time of Will: New “Rules of Thumb”


In summary, if in doubt spend a small amount of money now to have an independent assessment of capacity to save running a major trial 10 years later.

In Ryan v Dalton (31 July 2017) Justice Kunc provided a “postscript” on “questions of capacity” “proposing some basic rules of thumb” as “basic precautions” particularly in…

July 10, 2017

TPD: “Labour Markets” v “Reasonably Accessible” – Part 2


A number of people asked whether any labour market evidence was required if the “reasonably accessible” labour market test does not apply.

Thank you for all of the email feedback. A number of people asked whether any labour market evidence was required if the “reasonably accessible” labour market test does not…


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