The recent case of Campbell & Anor v T.L. Clacher No. 2 Pty LTd & Ors [2019] QSC 218 dealt with a application by two daughters as against the trustee of their family trust, the trustee of their sisters family trust and their father in respect of transactions that occurred between the parties following very…
Category: Litigation
Duty Bound: solicitor’s duty to beneficiary of incapable testator after inter vivos transfer
It was in the context of preparing for the delivery of my recent presentation for The Tax Institute’s Death…and Taxes Symposium on the Gold Coast recently that I come to read a recent case of solicitor negligence in the context of estate planning. In the appeal decision of McFee v Reilly [2018] NSWCA 322, a…
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…
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…
Selfless surrender: defacto partner applies for Statutory Will to benefit mother and sisters (NSW)
Sadly, it’s not often I read of a case where the applicant/plaintiff’s endeavours lack self-interest. Given the nature of estate litigation, generally in a good portion of the cases, self-interest takes a front seat. Of course, that doesn’t mean to say that it is greed or something sinister that drives a person to take…
The Unsent Text Message Will: Is it really that simple? No – it’s really not! (QLD)
It’s likely been in your news feed recently that an unsent text message was held by a Queensland Court to be a valid Will. It may seem quite unbelievable to some that this would even happen! On the other hand, maybe it doesn’t? Reviewing the comments that appear in many of the media articles online…
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…
“Probable intention”: Novel rectification case in ACT
Recently the Supreme Court in the ACT was called to determine a question of the interpretation of a Will and subsequent amendments made to the Will by the testator on the day he died. In the Estate of Rummer [2017] ACTSC 277, the Plaintiff called upon the Court to determine the true construction of the…
“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…
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…
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),…
Escaping the Nest: Abandoning a right to reside and FPA 15 years out of time
Recently, the NSW Supreme Court determined a slightly unusual coupling of issues; a construction matter as to a right to reside conditional upon payment of expenses alongside a family provision claim over 15 years out of time. The recent case of Estate of George Roby, deceased [2017] NSWSC 265 involved the estate of the late George Roby who passed…
Worldy Wisdom: Why a pro forma will still ends up in Court
I’m always curious as to any judgement dealing with will kits or proforma wills. I have every suspicion we will see more of these as the years go on. Recently the Court had to determine what a testator meant in the matter of Rhodes v Rhodes (as Executor of the Estate of Cecil Ronald Rhodes) & Ors…
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…