An interview with Stewart McNab

Wednesday September 29, 2021

An interview with Stewart McNab

Wills and Estates law encompasses a complex range of legal issues.  But as the lawyers working in the area know, the main challenges and rewards can often come from the broader circumstances of each dispute – the family relationships involved, the last wishes of a loved one about the property they owned and cared about.  The ABC programme ‘Fisk’ has made popular some of the more ‘quirky’ aspects of this area of practice.

Given the array of issues that can arise, there is great value in the knowledge of senior members of the profession who have ‘seen it all’ (or nearly).  Hicks Oakley Chessell Williams has a history dating back over 50 years, with a depth of experience in Wills and Estates developed over that period.  HOCW’s Wills and Estates team also works closely with experienced barristers to ensure clients are well advised in estate litigation matters.

Mr Stewart McNab has practised in the area of Wills and Estates for over 50 years. Stewart was generous enough to share his insights about Wills and Estates law with Natalie Talia, Senior Associate.

  • What year did you commence practice and, later, come to the bar?

    From 1965 I worked in my holidays in the family law firm, McNab McNab & Starke, whilst a student and was admitted LLB as a solicitor in March 1970. I had always wanted to go to the Bar and eventually had to decide now or never in 2001 and signed the Victorian Bar Roll in November 2002 at 57.

  • What was the case or experience that made you interested in the Wills and Estates/Succession law area?

    My family’s firm had specialised in succession law since my grandfather’s time, so a considerable part of my practice was succession over the time I was practising with the family. More importantly I found succession law fascinating, it is quirky, complicated and difficult, in spite of being somewhat unkindly called family law for the dead!

  • You were in the first group of practitioners to achieve a Law Institute of Victoria Specialist Accreditation in Wills and Estates.   What do you think that scheme did then (and now) for clients requiring legal services in the area?

    Yes, I was in the first intake in 1993. I thought it was a great step forward in establishing succession as a separate area of expertise.

    Until then probate work was seen as merely another form of conveyancing fit only for para-legals and estate administration and succession litigation as only an adjunct to civil litigation generally. The law is technically "dense" and difficult and not easy to master and I think was, and is, requiring of proper expertise of those who practice in the area. The accreditation enables the public to establish those who are experts in the area and vouches for their competence.

  • Do you have a ‘most memorable’ case?

    Two cases come to mind, the first being the case of Fast v Rockman in 2010, which is the leading case on the validation of informal wills. I was also one of the counsel in the slightly earlier case of the Estate of Brock which also dealt with the same question. “Brockie” as he was known was a very well-known racing driver, killed in a rallying accident.   

  • What is the most interesting exhibit ever tendered in one of your cases?

    A conveyancing deed executed by John Pascoe Fawkner in 1840. Although it was over 160 years old the first time I saw it, the document seemed so fresh it looked as if it had been written out and signed that morning.

  • What is the most unusual item of property in issue in a case (i.e. the well-known chattel battle)?

    A butterfly collection and a china ballerina worth absolutely nothing except to the warring parties!

  • What would you consider the most significant change in the area of Wills and Estates over your years of practice?

    The fact that the jurisdiction has become an area that now involves and requires real expertise from those who practice in the area. The other thing is the rise in mediation being used to resolve disputes in succession. The majority of contested matters in the area are now resolved by mediation rather than by a trial with a great saving in time and cost to the public.

  • If you could change one thing about the law in this area, what would it be?

    Perhaps changing human nature for the better, rather than the law and I am not optimistic about this!

  • What advice would you give to our clients, many of whom find themselves involved in litigation when they least expect it?

    Seek expert advice early and enter into negotiations or mediation to see if the litigation can be resolved at an early stage and to try (although this is difficult) to look at the matter as involving money and not emotion.

HOCW congratulates Mr McNab on his retirement.  We extend our thanks for his contribution to the area over many years, and for generously sharing his expertise and stories!