Earlier this year, I was surprised to read a judgement where a former spouse successfully claimed for further provision from her former husband’s estate notwithstanding the pair had completed a property settlement 25 years prior. You can read my earlier post here. It may come as no surprise that the matter was appealed to the…
Category: family provision
Excluded child’s claim dismissed: 40 years of estrangement after bitter divorce (NSW)
In case it’s not already evident to my readers, I have a particular interest in family provision cases that touch on disentitling conduct or estrangement. So, it’s no surprise this recent case in the Supreme Court of NSW caught my eye yesterday where a family provision application by an adult child, who was excluded from…
“Child Support”: Effect on earning capacity and meaning of “Support” in an FPA (Qld)
Imagine if you had a child with your partner and the relationship failed, resulting in your separation and shared parenting relationship. Then, your former partner passes away. How much did you depend on your former partner for support or help? “Support” or “help” can be pretty subjective words when it’s this kind of scenario. You…
Important Amendments to Qld Succession Laws: a sign of the times
We live in a different age. We live in a world where blended families are a common fixture within our communities. I, personally, know many beautiful blended families and I’m sure many of my readers do also. In fact, I’m sure there are some of my readers that may know blended families that are closer…
Child of de facto spouse = Step-child in FPA; Decision upheld on Appeal (VIC)
In September last year, I wrote of case in Victoria where a child of the de facto partner of a deceased person made a claim on the estate by claiming they were a “step-child” within the meaning of the legislation. For background, you can read that article here. Yesterday, the Victorian Court of Appeal published…
Burden of secrets: Claim for secret trust within an FPA by grandchild (NSW)
Within a family dynamic, particularly as the elderly age and consider their demise, it’s common to hear of conversations being held between family members of “understandings” and benefits that may flow the next generation on the death of the elder. Promises made and, sometimes, others rely on those alleged promises. So what happens where there’s a secret of a…
Dare to Care: Close personal relationship in FPA (NSW)
Many people would have a different view of exactly what a “close personal relationship” may look like. In New South Wales Family Provision law, their collection of people who may make a claim on an estate further further provision is much wider than that of Queensland. Under section 57(1)(f) of the Succession Act 2006 (NSW),…
A Shared Life: Family provision claim by same-sex defacto of 30 years
For those of my readers who are not familiar with estate litigation matters, it is common for parties to apply to the Court to “sign-off” on negotiated outcomes following a private mediation. This is particularly so where the estate property is comprised of real property. As such, I thought it worthwhile to write a short note on the latest case of Roberts…
Competing Relationships: Needs of De Facto vs Adult Children
Relationships and tragedy are a complex maze of emotions. In the very sad case of Gore v Rouse [2017] QDC 98, Mr Gore was tragically killed in a tree lopping incident at the home of his de facto partner, Mrs Rouse. Mr Gore was 63 years old. Mr Gore was survived by three adult children, Tracey (from his first marriage),…
Timing is everything: FPA out of time by 10 days allowed on appeal
For those of you who aren’t aware, last year saw the Supreme Court dismiss a family provision application that was filed only 10 days past the limitation date in the matter of Mortimer v Lusink & Ors [2016] QSC 119. As you probably would appreciate, this was met with quite a lot of interest in my world. I’m sure…
Family Ties: Former wife successful in FPA where financial settlement finalised 25 years prior
I read, with interest, the recent case of Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10, which dealt with a family provision claim by a former spouse of the deceased where a financial property settlement had been reached some 25 years prior to the deceased’s date of death. In New South Wales, a claim for family…
Lost time is never found again: FPA 63 days out of time dismissed
Lost time is never found again – Benjamin Franklin. Another example of how important deadlines are in a family provision application (FPA), the Queensland Supreme Court was called to determine an application for leave to proceed with an FPA out of time. The case of Frastika v Cosgrove as executor of the estate of Russell…
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….
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…
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…
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,…