The deceased’s son was found responsible for the killing of his parents but was not found guilty of murder by reason of mental impairment. The estates were left in equal shares to the son and daughter. The granddaughter (daughter of the son) applied for approval of a compromise of two family provision applications. The compromise … Continue reading Forfeiture, family provision and costs
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Solicitor’s duty clarified – Badenach v Calvert [2016] HCA 18
This eagerly anticipated judgement was handed down this morning by the High Court. It concerned the scope of a solicitor’s duty to a beneficiary, when preparing a will for a testator. The solicitor drafted the deceased’s will, which left everything to the sole beneficiary. The estate was not large and was substantially depleted by the … Continue reading Solicitor’s duty clarified – Badenach v Calvert [2016] HCA 18
A win for the charities!
In a FPA judgment handed down 3 weeks ago a District Court Judge awarded significant sums to two applicants, but proposed to take the costs of the entire action out of the share of only one of the beneficiaries (who was a charity, and unrepresented at trial). I acted for the charity in making submissions against that. … Continue reading A win for the charities!
No joy for executor
An interesting decision handed down last week (Qld District Court, McGill DCJ) where an executor distributed the estate just after the 9 months expired. Then attempted to rely on distribution to defend FPA. Negotiations had been continuing when the time expired. The application for summary dismissal was dismissed. Executor was joined personally to the action … Continue reading No joy for executor
Stepkids or no stepkids – that was the question
Ann Lyons J today handed down judgment in a will construction case. I was for the third respondent. The will was drawn by a solicitor and contained two conflicting gift over provisions. The testator in one clause left the residue of her estate to those of her children and stepchildren who were living at the … Continue reading Stepkids or no stepkids – that was the question
Is an appointor’s duty a fiduciary one?
Allanson J of the WA Supreme Court held, on the facts before him, that it was not. Read Blenkinsop v Blenkinsop Nominees [No 2] here.
Taking McIntosh one step further…
A recent SA decision has found that an executor owes the same duty as an administrator to get superannuation funds into the estate. More importantly, it was held that any conflict was not authorised by the will, because: there was "a sophisticated superannuation policy governed by a complex trust deed in which the trustee has discretionary functions." There … Continue reading Taking McIntosh one step further…
Rare disentitling conduct case
Today a judgment was handed down which will please many executors and family members of deceased persons involved in litigation. It was the first successful disentitling conduct case for many years. The conduct was that the applicant son was physically violent towards his mother and frequently abused her, prior to being completely excluded from her life. Sanderson … Continue reading Rare disentitling conduct case
Non-fulsome disclosure not good enough
Yesterday a family provision claim was dismissed in a large estate ($3.5m to $3.8m) primarily on the basis of the applicant’s failure to fully disclose his financial position. There was also a long estrangement of some 25 years. The applicant was a 55 year old son who was left only $10,000 from his father’s estate. … Continue reading Non-fulsome disclosure not good enough
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