“Whatever starts in California unfortunately has an inclination to spread“: Jimmy Carter Gregory Coote was an Australian born entertainment mogul who sadly died earlier this year. Whilst he was born in Oz, he spent most of his later years living in California. In 2011, Mr Coote had been party to divorce proceedings from his second wife and subsequently entered into…
Category: Litigation
Crossing borders: Disputes and Domicile
I’ve always been fascinated by this particular question as to how to resolve a dispute where the issue of the deceased’s domicile is in question. There have been a few cases that discuss the issue of domicile, but the question as to what should happen when this issue is in dispute AND there’s a dispute as to a matter…
FPA x2: Grandson vs Daughter – Close Personal Relationship
This month, the Supreme Court of New South Wales, determined a family provision claim by a self-sufficient adult daughter and an adult grandson. In the case of Re Filomena Rodi, deceased [2016] NSWSC 1696, the deceased was survived by four children, 2 daughters and 2 sons, and had left her estate to them equally….
Computer Will upheld
In the Estate of Robin Michael (Deceased) [2016] SASC 164, the Supreme Court of South Australia held that a computer document was to be admitted to probate as the last will and testatment of the deceased. The Court itemised the following main issues to be determined were: Was the will on the deceased’s hard drive of…
An offer is an offer, no matter how small?: Costs in FPA after parentage test negative. Dismiss/Discontinue?
Recently, the Supreme Court of New South Wales was tasked with determining whether the Court should dismiss or discontinue proceedings following the plaintiff’s parentage testing resulting in him not being the deceased’s child and therefore not an eligible person to make a claim. In the matter of Patterson v Scott [2016] NSWSC 1477 the Court heard that the plaintiff had commenced a family provision…
Extension of time application dismissed – 11 months out of time
Yesterday, the Supreme Court of Tasmania determined an application for extension of time in a family provision matter. The case of Nicholas v Tubb [2016] TASSC 53 was an application made by the 4 adult children of the deceased testatrix. The time to bring the application expired on 27 June 2015 and the originating application was filed on…
Executor’s duty and what to do with that additional informal document
In their last days, people can often have cause to consider additional wishes they want to record somewhere as they consider what means most to them. Unfortunately, sometimes recording these wishes can become problematic for the executors and family left behind. Here’s a good example: I recently read the case of Re Mangan [2016] VSC 480…
Child of defacto spouse = step-child in family provision claim
In today’s society, it’s not uncommon for someone to refer to their defacto partner’s child as their own. They are often just as close to them, if not even closer, than their own, biological children. The Supreme Court of Victoria today handed down a decision finding that a child of a defacto spouse was a step-child of the deceased…
Sexual abuse and the impact on family provision claims: compensation vs adequate provision
Recently the Victorian Court of Appeal sought to determine an appeal by an executor against a decision to make provision for an adult daughter of the deceased in a family with a difficult past. In the case of Jones v Smith [ 2016] VSCA 178, Constance, was the applicant and the adult daughter of John…
Family Provision and 30 years of estrangement, continued…
In my earlier post about the case of Wright v Wright where a family provision claim by estranged children was successful, the Court was to hear the parties arguments relating to how the legal costs of the claim should be paid (i.e. from the estate and which beneficiaries would pay etc. In the first judgement, the Court felt that it…
Question, answered. Does a Solicitor owe a duty to a disappointed beneficiary?
The long awaited decision of Badenach v Calvert [2016] HCA 18 was handed down today by the High Court of Australia. Does a solicitor owe a duty to an intended beneficiary? Well, it depends, but in this case, the short answer is no. And here’s why: By way of background, the case of Calvert v Badenach caught…
Rural farming and interpretation of “farming machinery” within a Will
As a regional lawyer living in a semi-rural area and with family in the farming industry (and as a succession nerd generally!), I thoroughly enjoyed reading this case. This case of Frey v Frey [2015] QDC 184 involved an issue of interpretation when the testator gifted “farming machinery” to a beneficiary. With multiple properties (gifted in various…
Family provision and 30 years of estrangement
I am always fascinated by the outcome of family provision claims where the applicant is an estranged adult child. Naturally, the case of Wright v Wright [2016] QDC 74 piqued my interest. The case involved a testator leaving a significant estate valued at approximately $1.7 million dollars. Within his last will, the testator elected to disinherit his children and benefit his siblings,…
“An amount equivalent to” a Retirement Village Exit Entitlement in a Will
With an ageing population and more testators residing in retirement villages with either freehold or leasehold interests at play, I found this case particularly interesting. The case of Suthers v Suthers [2015] QSC 285 involved a gift to the daughter of the testator of an amount of money equivalent to an amount received by the estate from the sale of the testator’s…
Court Made Will to protect assets from passing to children until 25 years
Court-made will to protect assets from passing to children until 25 years. Being a fairly new and novel area of the succession practice space, I’m always curious and therefore read the cases that hit my news feed on court-made wills and the reason behind them. The legislation sets out a clear formula for determining whether…
A Research Study – “Having the last word: Will making and Contestation in Australia”
I had the great pleasure of reading a very interesting report entitled “Having the last word: Will Making and Contestation in Australia”.
For those that want to skip to the good bits, you can access the report here.
In summary, the study was conducted over 4 years and is the bouncing baby booklet of the Public Trustees and the University of Queensland under an Australian Research Council Linkage Grant.
Costs capped in FPA: Severe underestimation – Lesson learned
Cerneaz v Cerneaz (No 2) [2015] QDC 073 And another day brings another case on costs, but this case stood out to me and I’ll tell you why. The case of Cerneaz v Cerneaz [2015] QDC 41 involved a FPA claim by a de facto spouse. The Court ordered a legacy in favour of the…
Step-son successful in FPA on an estate worth $260k
Recently in Cairns, the District Court made an order for a step-son to receive a further $30k from an estate worth approximately $260k. In determining the matter, the court found that the applicant’s net worth was fairly low as he headed towards retirement age and he had also contributed significantly to the maintenance and upkeep…
Two Hats: Administrator & Super fund beneficiary = breach of fiduciary duty and account for profits
Her Honour Justice Atkinson delivered judgement on the case of McIntosh v McIntosh on 16 May 2014. This case involved an application for directions by the Administrator of an estate regarding the superannuation proceeds paid directly to her as beneficiary (at the discretion of the trustees). The administrator was the deceased’s mother. The deceased was survived…
Family Provision Claim: Widower VS Adult Children x2
In the case of Hay v Public Trustee of Queensland & Anor [2014] QDC 107, His Honour Justice Baulch considered an application by 2 adult children against the estate of their late mother. The second respondent was the deceased’s widower.