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…

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…

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…

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…

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…

Crossing borders: Disputes and Domicile

I’ve always been fascinated by this particular question as to how to resolve a dispute where the issue of the deceased’s domicile is in question.  There have been a few cases that discuss the issue of domicile, but the question as to what should happen when this issue is in dispute AND there’s a dispute as to a matter…

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….

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…

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…

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…

Rural farming and interpretation of “farming machinery” within a Will

As a regional lawyer living in a semi-rural area and with family in the farming industry (and as a succession nerd generally!), I thoroughly enjoyed reading this case. This case of Frey v Frey [2015] QDC 184 involved an issue of interpretation when the testator gifted “farming machinery” to a beneficiary. With multiple properties (gifted in various…

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,…

“An amount equivalent to” a Retirement Village Exit Entitlement in a Will

With an ageing population and more testators residing in retirement villages with either freehold or leasehold interests at play, I found this case particularly interesting. The case of Suthers v Suthers [2015] QSC 285 involved a gift to the daughter of the testator of an amount of money equivalent to an amount received by the estate from the sale of the testator’s…

Court Made Will to protect assets from passing to children until 25 years

Court-made will to protect assets from passing to children until 25 years. Being a fairly new and novel area of the succession practice space, I’m always curious and therefore read the cases that hit my news feed on court-made wills and the reason behind them. The legislation sets out a clear formula for determining whether…

Step-son successful in FPA on an estate worth $260k

Recently in Cairns, the District Court made an order for a step-son to receive a further $30k from an estate worth approximately $260k. In determining the matter, the court found that the applicant’s net worth was fairly low as he headed towards retirement age and he had also contributed significantly to the maintenance and upkeep…