Court of appeal overturns FPA dismissal

In a judgment handed down this morning, the Qld Court of Appeal overturned a decision of Martin J from last year, where he dismissed an application to extend the time for bringing an FPA. Gotterson JA said (at [63]): In my view, the appellant has advanced an arguable claim for further provision out of the deceased’s estate. … Continue reading Court of appeal overturns FPA dismissal

Widow unsuccessful in out of time FPA

A 27 year old widow brought a claim, out of time, in the estate of her 70 yo deceased husband.  The estate was worth approximately $1m.  The applicant was left $10,000 plus two motor vehicles.  In addition, she received $150,000 from his superannuation.  The balance of the estate was left to his two children and … Continue reading Widow unsuccessful in out of time FPA

Out of time FPA dismissed

This morning Byrne J (Qld Supreme Court) dismissed an out of time FPA.  The applicant would have received half of the estate under the will (E$750,000 as at DOD) and she filed her application months out of time, after making a conscious decision, after legal advice, not to commence the FPA within time. Read Budulica v … Continue reading Out of time FPA dismissed

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

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

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

Both parties’ costs capped in FPA

In Cerneaz v Cerneaz (No 2) [2015] QDC 73 Smith DCJA capped both parties' costs after a successful FPA by an applicant spouse.  The applicant's costs were estimated at $140,000 and were capped at $100,000.  The respondents' costs were estimated at $162,417.28 and were capped at $130,000. The Judge was critical that the actual amount … Continue reading Both parties’ costs capped in FPA

Spouse awarded $350,000 on FPA

In a recent judgment Smith DCJ awarded a spouse of 18 years $350K out of an estate of approximately $670K (after allowing for costs).  She had been left a life interest in a house (to be chosen by her). The competing claims were two adult children from a previous marriage. Costs argument has been heard … Continue reading Spouse awarded $350,000 on FPA