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…

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…

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),…

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…

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…