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…
Missing element: High Court orders new trial in solemn form probate proceedings; denial of procedural fairness
It appears to be raining estate and trust law cases from the High Court of Australia over the last two weeks. Yesterday, the High Court of Australia ordered a new trial be held in relation to solemn form probate proceedings in Nobarani v Mariconte [2018] HCA 36 on the basis that the appellant as denied…
Sorry, Frank, it’s over: High Court clarifies position on streaming franking credits to trust beneficiaries
As I begin this post, I acknowledge wholeheartedly that this topic might surprise my collection of followers. While, yes, it is indeed a case review, it is focused on a different arm of succession law practice: trusts generally and *cough*taxation of trusts*cough*. As I witness the evolution of estate law before my eyes, I can’t…
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…
“Divorced from reality”: Appeal allowed in former spouse FPA claim (NSW)
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…
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…
No Will, no way?: Court refuses application for statutory Will in large estate (Qld)
Admittedly, it’s not something that one regularly thinks about, but the issue of incapacitated people making Wills is a topic that achieves much discussion nowadays. Where a person doesn’t have a Will, whether by choice or otherwise, the law provides what I like to call a “back-up plan” or formula, if you will, of how…
Informal Revocation: Can a File Note be enough to revoke a Will? (TAS)
This morning, I read a very interesting case that makes me think of the tasks I do on a daily basis; taking notes of my client’s instructions. The case of Public Trustee v Bott [2017] TASSC 43 involved a question of whether a File Note could be an informal document containing the deceased’s testamentary intentions…
Leaving a “note” for mum successfully appealed; “Note” = Will
Not all that long ago, I wrote an article on a case involving a gentleman who had passed away in China. He was Australian Citizen who was resident in China for many years and he had left a note for his mum regarding his wishes to distribute some of his property which gave rise to…
“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…