In this episode, Caite & Michele work through two cases that involve (at least to some extent) some allegations of disentitling conduct. But, beware. Not is all as it seems.
Category: family provision
Disentitling Declarations: statutory declaration about conduct, provision ordered in FPA (Qld)
The topic of statutory declarations being used in estate planning has been ongoing and [almost fiercely!] debated among succession lawyers. Litigators and planners both love them, but for very, very different reasons. In fact, it was a topic of conversation between Caite and I on The Heir Waves podcast here. In the case of Hartley…
Cut of the Cattle: FPA dismissed after lengthy estrangement between rural family
Whilst this case is a little older than my usual case updates, it is by no means less interesting and, in my humble opinion, important when it comes to considering decisions in family provision matters involving disentitling conduct and estrangement. In the case of Dawson v Joyner [2011] QSC 385, the deceased was survived by…
Addiction & Conduct: FPA applicant receives legacy following tumultuous childhood (QLD)
I regularly research for my PhD and, lets be honest, for nerdy interest, for cases involving disentitling conduct. I recently spoke about this case on The Heir Waves podcast (Episode 1, to be exact) about the decisions of Hartley. I wanted to also post about it here for some further detail as I think the…
Mutual wills & disentitling conduct – on The Heir Waves
In the latest episode of my new podcast called The Heir Waves, Caite Brewer and I discussed some interesting cases, including one that involved mutual wills and another involving, my favourite topic, disentitling conduct. Have a listen below: Title: To love and to loathe: mutual wills and disentitling conduct In this episode, Caite & Michele…
“Estrangement explained”: FPA provision ordered following years of family disharmony
The case of McLeod v Napthali [2021] NSWSC 1621 really struck me as I read this brief judgement today. Great thanks and shout out to buddy Clifford Hughes for sharing this one with me (he understands my great love of all things estrangement and disentitling conduct in FPAs!). This is great humanity demonstrated by His…
Executors behaving badly: Successful removal and IA appointed (QLD)
Getting an executor removed for undesirable behaviour can be quite the challenge in practice. Many elements are part of the equation including the conduct of the parties, the nature of the estate, the steps required to be taken to finalise the estate and the cost of appointing someone separately to administer the estate. Normally, the…
Leave ’em a loan: Liability to pay mortgage left with joint tenant
The liability of a mortgage is probably one of the most significant liabilities a couple will share. Whilst many times it’s a fairly equal distribution of that liability when everything is held jointly, it’s not always the case in circumstances of second/later relationships or a singular income earner and home maker. The recent decision of…
Elder Abuse = Disentitling Conduct: FPA by adult daughter dismissed with costs
It is no surprise to any of my colleagues in the succession world that this topic is of great interest to me. So, you can imagine my interest when I found this case. A few days ago, the New South Wales Supreme Court determined a matter that involved a family provision claim by an adult…
Family Values: successful FPA by trans woman, following estrangement & disharmony among family (VIC)
I recently read an interesting media article on a family provision case and had to look further into get to the bottom of it. It involves a case where an adult child made a claim against a father’s estate for further provision having received no provision from the estate under the father’s Will. What was…
Pandemic or Prejudice: FPA hearing vacated amid COVID-19 (ACT)
I sincerely hope this reaches my readers, followers, and passers-by in a situation where they are safe and well during this tumultuous time in the world! For those in litigation, your practice is changing daily as we wait (and wait) for certainty (if it is ever arrives!); and those hearings aren’t going anywhere.. or are…
Conduct that disentitles: son’s application for FPA fails (QLD)
When someone contests a Will after being left out or not getting what they feel is their fair share, it’s more often than not that the surviving family want to suggest that that person’s conduct doesn’t entitlement to more, or sometimes anything. This is what us #lawnerds term as “disentitling conduct” in the context of…
Decision Impossible, Part 2: Appeal against disabled son’s FPA dismissed, with costs
Near the end of last year, I wrote a post about an FPA by a disabled son where provision was ordered in favour of that son to the detriment of the surviving widow of the deceased. This was, I feel, aptly described in the title as “Decision Impossible” as the effect of the order was…
Fractured Relationship: abuse and estrangement in FPA, provision ordered (NSW)
In the first post of this year, it seems fitting to write on the topic of disentitling conduct and estrangement, given my research interests in this space. Sadly, late last year saw the NSW Supreme Court determine a family provision application by a son against his father’s estate in what was clearly a very difficult…
Decision Impossible: FPA by disabled son against widow, forcing sale of family home in notional estate (NSW)
Recently, the NSW Supreme Court determined a very difficult family provision application by an adult son, in circumstances where the adult son was otherwise healthy when the deceased passed away, but subsequently suffered significant health issues following his father’s death. Further, the only available assets for such a family provision claim were via notional estate….
Danger Zone: costs against plaintiff in FPA in small estate (NSW)
Family provision claims in small estates is an inherit danger zone for claimants and lawyers. The recent case of Wengdal v Rawnsley [2019] NSWSC 926 has demonstrated this again where Justice Hallen has ordered that the plaintiff’s claim be dismissed and the plaintiff pay the defendant’s costs on the ordinary basis. In this case, the deceased…
Renewable Power: Court permits Attorney to renew superannuation nomination (QLD)
For a while now, it’s been a hazy question asked by succession lawyers alike about whether an attorney can make or renew a binding death benefit nomination for their principal’s superannuation policy proceeds. On 24 August 2018, Justice Bowskill of the Supreme Court of Queensland delivered a decision on this very topic. The case of…
Wife support: FPA by widow dismissed with costs (NSW)
It is a suggestion that arises throughout many estate disputes that the claim of a widow on an estate should be paramount to those of other family member who survive the deceased person. However, as each case is determined on it’s merits, this is not always the case. Yesterday, the Supreme Court of New South Wales…
What is “Contemplation of marriage”: Marriage revokes Will in blended family (NSW)
Last week, the Supreme Court of New South Wales published a judgement in a estate matter where the question of whether a Will was “made in contemplation of marriage” was a central focus of their attention. In the case of Re Estate Grant, deceased [2018] NSWSC 1031, the deceased made a Will dated on about…
FPA 7 years out of time: Allowed on Appeal (WA)
In an unusual case published a few weeks ago, the Western Australian Court of Appeal allowed an extension of time for an adult son to bring a claim against his late father’s estate 7 years after the time limit expired. The claim was dismissed at first instance and the adult son appealed asserting 9 different…