“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…

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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…

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“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…

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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…

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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…

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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…

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Australian Citizen resident in China leaves a “note” for mum

Update! This case was successfully appealed in June 2017.  Read my article on the appeal here. Documenting your wishes is simple in theory, but quite a different story in real world.  The Supreme Court of Victoria had quite the job recently in  deciphering whether a note a man left behind was considered to be his “Will” and…

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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…

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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…

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Blood thicker than water: novel intestacy case in NSW, Aboriginal half-sisters vs adoptive half-sisters

Starting the year off on a very novel case of an intestacy contest, Justice Lindsay of the Supreme Court of New South Wales was called to determine how distribution of an indigenous man’s estate should be distributed where his surviving family were Aboriginal half-sisters and adoptive half-sisters. The case of Re Estate Wilson, Deceased [2017] NSWSC…

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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…

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“There is no one alive who is you-er than you!” – Imposter Testator and the Supreme Court

“There is no one alive who is you-er than you!” – Dr Seuss In an odd case, Chief Justice Catherine Holmes was called upon to determine an application of probate in solemn form with a side order of an imposter claim. In the case Martin Terrence Farrell v Warren Elbridge Boston [2016] QSC 278, the Applicant, Martin…

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Contracting in Cali: Breach of contract to make Will

“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…

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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…

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