At The Tax Institute’s March 2019 National Convention, in Hobart, Tim Tierney, of Tierney Law, presented his paper, entitled: Elder Practice – King Lear and the Baby Boomers Last Stand


 

EXTRACT

1 Overview

During the first half of the last century, history was made with conflict so extensive and broad ranging, that a new type of war was invented – the World War. Perhaps the world’s most destructive wars, gave rise to the world’s most destructive generation. In the forties and fifties, the baby boomers boomed the economy. In the sixties and seventies, they boomed the music. In the eighties and nineties, they boomed greed. As we head bravely into the new millennium, the baby boomers keep on making history. They are now the oldest and richest generation the world has ever seen. But they are becoming the longest lived and most incapacitated generation.

But how much of this is new? In Shakespeare’s play, King Lear divides his kingdom according to how much his children love him. In modern professional parlance, King Lear decides to settle his estate on his daughters with the expectation:

  • each of their castles has room enough to accommodate Lear,
  • Lear will rotate in a cycle of granny flat interests from one daughter to the other, and
  • the daughters will care for him appropriately till his death.

By the end of the play, in modern professional parlance, King Lear:

  • has written one of his daughters out of the settlement,
  • is denied access under his granny flat entitlements
  • is betrayed by his executors, trustees and attorneys, and loses capacity.

In response King Lear’s estranged daughter:

  • makes a breach of trust and fiduciary duty claim against her sisters, and
  • claims for further and better provision from her father’s estate.

Testamentary capacity

The formula for determining testamentary capacity is stated in the judgment of the Court (Cockburn CJ, Blackburn, Mellor, and Hannen JJ) delivered by Sir Alexander Cockburn in Banks v Goodfellow 1870 LR 5 QB 549 at 565 as follows:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.”

22.3.19

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