Q&As

Testamentary Capacity: Ongoing Considerations with Christopher Brohier

Monday May 7, 2018

Christopher Brohier was admitted as a practitioner of the Supreme Court of SA and the High Court in 1981. He joined the Independent Bar in 1993. In his 20 years at the Independent Bar he has appeared in complex commercial and civil matters in the Supreme Court, Federal Court and District Court.  

Christopher Brohier

He has appeared in complex testamentary matters such as removing an executor, forcing the distribution of an estate, challenges to wills on the grounds of want of testamentary capacity and claims under the Inheritance (Family Provision) Act 1972. He has been in numerous difficult and successful mediations in estate and other commercial and civil matters.

We had the pleasure of sitting down with Christopher recently to discuss key challenges and opportunities facing the industry today.

Read the Q&A below and hear more from Christopher at the Wills, Estate Planning and Administration Conference seminar.

Can you tell us a bit about your practice and what your day to day looks like?

My background was in commercial litigation, property and testamentary litigation but I have migrated increasingly to a wills litigation and human rights /constitutional law/ administrative law practice in recent years. I am also a nationally accredited mediator and my day to day involves advising, drafting, mediating and advocacy.

What are the types of matters do you get excited about?

I currently have two constitutional law matters before the High Court which is very interesting. I am also involved in some difficult testamentary matters. 

"There is more contesting of wills in the Inheritance Family Provision jurisdiction much of it (in SA) over quite small estates."

Briefly, what are some of the key trends and developments in Wills and Estate practice that you’re seeing in SA/nationally? 

There is more contesting of wills in the Inheritance Family Provision jurisdiction much of it (in SA) over quite small estates. There is also a rise in older people having their money taken from them by relatives.

Your topic will cover ‘Testamentary Capacity – Ongoing Considerations’ at our up and coming seminar – why does this continue to be such a significant/ difficult/ risky area?

The aging of our population and the difficult economic times that some are going through means that there are increasing contests in relation to wills. This is further in SA by the collapsing of work areas like personal injury work which has meant the solicitors have moved into this area which never goes away.

What’s one mistake you see practitioners make when trying to determine capacity?

Mistakes may occur when capacity is assumed or relying on a doctor or other health specialist not skilled in the area of determining capacity. A practitioner can and should conduct his or her own investigations by asking a few simple questions and then if there is a doubt obtaining advice from a gerontologist or properly briefing a GP as to what constitutes capacity is important.

You can hear more from Christopher at the Wills, Estate Planning and Administration Conference seminar, being held on Thursday 28 June at the Stamford Plaza The Adelaide Hotel, Adelaide.

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