Forfeiture, family provision and costs

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

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

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

Former sex worker not a de facto

The NSW Court of Appeal has dismissed an FPA appeal by a former paid sex worker, later carer for her former client the deceased. The trial judge had found she was not an eligible applicant because she was not in a de facto relationship with the deceased, nor did she fulfil other eligibility criteria (of which … Continue reading Former sex worker not a de facto

Another adult child FPA appeal dismissed

Yesterday the NSW Court of Appeal dismissed an appeal by an unsuccessful FPA applicant. The applicant was an adult child of the deceased.  His mother died leaving her estate to her spouse (there were notional estate issues as well).  The mother and step father had mirror wills which each left their estates to each other, … Continue reading Another adult child FPA appeal dismissed

To trust or not to trust, that is the question

Applegarth J today handed down a decision in a family provision application trial that took place earlier this month.  I appeared for the applicant. The issue at trial was not whether adequate provision ought to be made, that much was conceded (although quantum was in issue), but whether any award for the applicant ought to … Continue reading To trust or not to trust, that is the question

High Court appeal 

An application for special leave was filed last week against the decision of the Tasmanian Full Court in Calvert v Badenach [2015] TASFC 8. This is the case where the Full Court held that a solicitor owes a duty to beneficiaries of a will to advise the willmaker of the existence of family provision rights … Continue reading High Court appeal