Near the end of last year, I wrote a post about an FPA by a disabled son where provision was ordered in favour of that son to the detriment of the surviving widow of the deceased. This was, I feel, aptly described in the title as “Decision Impossible” as the effect of the order was…
Tag: family provision
Fractured Relationship: abuse and estrangement in FPA, provision ordered (NSW)
In the first post of this year, it seems fitting to write on the topic of disentitling conduct and estrangement, given my research interests in this space. Sadly, late last year saw the NSW Supreme Court determine a family provision application by a son against his father’s estate in what was clearly a very difficult…
Decision Impossible: FPA by disabled son against widow, forcing sale of family home in notional estate (NSW)
Recently, the NSW Supreme Court determined a very difficult family provision application by an adult son, in circumstances where the adult son was otherwise healthy when the deceased passed away, but subsequently suffered significant health issues following his father’s death. Further, the only available assets for such a family provision claim were via notional estate….
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…
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…
“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…
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…
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…
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….
An offer is an offer, no matter how small?: Costs in FPA after parentage test negative. Dismiss/Discontinue?
Recently, the Supreme Court of New South Wales was tasked with determining whether the Court should dismiss or discontinue proceedings following the plaintiff’s parentage testing resulting in him not being the deceased’s child and therefore not an eligible person to make a claim. In the matter of Patterson v Scott [2016] NSWSC 1477 the Court heard that the plaintiff had commenced a family provision…
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…
Question, answered. Does a Solicitor owe a duty to a disappointed beneficiary?
The long awaited decision of Badenach v Calvert [2016] HCA 18 was handed down today by the High Court of Australia. Does a solicitor owe a duty to an intended beneficiary? Well, it depends, but in this case, the short answer is no. And here’s why: By way of background, the case of Calvert v Badenach caught…
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,…
Costs capped in FPA: Severe underestimation – Lesson learned
Cerneaz v Cerneaz (No 2) [2015] QDC 073 And another day brings another case on costs, but this case stood out to me and I’ll tell you why. The case of Cerneaz v Cerneaz [2015] QDC 41 involved a FPA claim by a de facto spouse. The Court ordered a legacy in favour of the…
