Making a Will “In Contemplation of marriage” – Part 1

Posted on April 24th, 2019

Contested Will… when a claim can be madePart 1 – The Facts

This short, two part article, looks at an aspect of will making that is familiar to lawyers, but perhaps not to the general public. It relates to the effect of marriage on a will.

A long standing principle of Wills in NSW that if someone has a Will, it is automatically revoked by subsequent marriage – unless the Will was made “in contemplation” of that marriage. In 2018, the Supreme Court had to consider, in a complex factual context, the meaning of that phrase. This article is necessarily a highly simplified summary of that factual context.

Whilst still married to his first wife, Mr Grant commenced a relationship with another woman, who he later married after divorcing. As a result, when he died, he had both children and stepchildren. The de facto relationship was “on again, off again” but became stable in about 2012. Read the rest of this entry »

Strategic Settlement Offers Must Be The Real Thing

Posted on April 9th, 2019


The court did not award a higher rate of costs to a defendant despite the outcome of the case being better than an early offer it had made.


The plaintiff was a South African food supplements manufacturer trading under the brand name “The Real Thing”.  The Defendant acted as distributor for the plaintiff’s products in Australia.  The facts of the case are unimportant to the costs case, except to say that the plaintiff failed to make out allegations of: 1) Misleading and Deceptive Conduct; and, 2) Passing Off, and the proceedings were dismissed with costs awarded to the defendant. Read the rest of this entry »

Superannuation benefits – a trap for executors

Posted on April 2nd, 2019

Superannuation - who gets it when I die?Some years ago, I was involved in some litigation that arose when a man died leaving superannuation entitlements (but without nominating an intended recipient) and had nominated his partner as the executor of his Will. She personally wrote to the superannuation fund requesting the superannuation benefit be released to her on the basis that she was the deceased’s “spouse”; but she also applied for probate of the Will, which was granted. She was one, but not the only, beneficiary under the Will.

As soon as she became the Court appointed executor, she was in a position of conflict of interest. That was because she had asked the superfund to pay benefits to her personally but, as executor, she owed a duty to all beneficiaries to bring into the estate as much money as possible for their mutual benefit. She could not discharge that duty whilst simultaneously trying to obtain the superannuation benefit for herself. Read the rest of this entry »

The aging process –legal mental capacity

Posted on February 22nd, 2019

Can my step child contest my will?In Re Estates Croft, deceased [2018] NSWSC 1303 a couple with 6 children, made last Wills which favoured certain children rather than each other.  This led to some children receiving more of the couple’s assets when they died.  As a consequence the children brought legal proceedings challenging the validity of both of their parents’ last Wills.  Judge Lindsay had to consider whether “unusual behaviour” by aging parents was sufficient to legally invalidate their Wills (lack of mental capacity to make a Will).  The Judge was careful to consider the evidence of their behaviour at the time of the making of the Wills.  In the husband’s case, for example, the Judge concluded that his Will was a “rational, measured response to the domestic disharmony that had confronted him over the previous 11 months or so”.   Read the rest of this entry »

Contested Wills… the Court procedure

Posted on December 4th, 2018

 When a person intends to contest a Will, after establishing eligibility, he or she must commence proceedings in the Supreme Court. The District Court has jurisdiction however the Supreme Court is the preferred venue. The FPA list (as it is called) in the Supreme Court is managed by His Honour Justice Hallen. When the Summons commencing proceedings is filed, it is necessary for the applicant to file an Affidavit in support of the claim. A  Court practice note sets out those matters which must be addressed in the Affidavit in support of the claim. Read the rest of this entry »

Issues with Expert Evidence

Posted on November 9th, 2018

Issues with Expert EvidenceMany cases before the courts involve expert reports – such as medical evidence in personal injury cases; accounting evidence in loss of profit cases; and valuation evidence in property cases. However as a 2016 Supreme Court case shows, unless the report demonstrates that the expert has relevant expertise; and expresses the opinion in a way that allows a court to understand how the opinion was reached, it may be rejected as evidence.

The particular case was a complex fire/arson dispute relating to a fire at a property at Mosman in Sydney. At the time of the fire, significant extensions/renovations were underway. The insurer declined the claim on the basis that the property owner had set, or colluded in setting, the fire and had made misrepresentations in relation to his insurance claim. Read the rest of this entry »

Contested Will… when a claim can be made

Posted on October 15th, 2018

Contested Will… when a claim can be madeSection 58 of the Succession Act 2006 provides that an application to contest the Will of a deceased person must be made no later than 12 months after the date of death of a deceased person. However, the Court can on sufficient cause being shown order that an application be permitted to proceed notwithstanding that it is made more than 12 months after the date of death of the deceased person. There must be a very real reason why the application was not brought within time. Read the rest of this entry »

Can my step child contest my Will?

Posted on August 10th, 2018


Can my step child contest my will?When people talk about contesting a will, they are talking about family provision claims. Under the Succession Act, only certain classes of people are eligible to make a family provision claim. These are:

  1. a spouse;
  2. a de facto spouse;
  3. a child;
  4. a former spouse;
  5. a person who was
    1. wholly or partially dependant on the deceased at any particular time; and
    2. either a grandchild or a member of the same household as the deceased at any particular time; or
  6. a person in a close personal relationship with the deceased.

Read the rest of this entry »

When is a Will a Will?

Posted on July 27th, 2018

When is a will a will?Section 8 of the Succession Act provides that a document (or part of a document) that “purports to state the testamentary intentions of a deceased person and has not been executed in accordance with the provisions of the Succession Act 2006 can be deemed to be the deceased’s Will if the Court is satisfied that the person intended it to form his or her Will”.

On 9 October 2017, the Supreme Court of Queensland in Nichol v Nichol and Anor determined that a text message on the mobile phone of the deceased was deemed to be his Will. The unsent text message was made (apparently) sometime prior to 11 October 2016. The mobile phone with the message was found with the deceased when he was discovered on 10 October 2016. Tragically, the deceased took his own life. The message read as follows: Read the rest of this entry »

Bankruptcy and the “slip rule”

Posted on June 13th, 2018

Bankruptcy and the "slip rule"Most of us understand that once a judgment in a Court case is entered, it is final (except for any appeal rights). One minor exception, commonly known as the ‘slip rule’, is where an obvious error was made in a judgment or order. In the case of such an error, it can be corrected under the slip rule without the necessity for an appeal.

Slip rule applications are relatively rare. Even rarer was the situation that arose in 2016 when the Court was asked to make a slip rule correction to a judgment affecting a person who had become bankrupt. Under the Bankruptcy Act when a person becomes bankrupt, a creditor cannot “take any fresh step” in Court proceedings, except by leave. The issue the Supreme Court had to determine, was whether making a correction under the slip rule amounted to a “fresh step”. If so, the correction was not possible except by leave of the Federal Court (as opposed to the Supreme Court, where the proceedings had been instituted). Read the rest of this entry »

Costs – who pays when each party has some success

Posted on April 4th, 2018

The Supreme Court recently issued a cost decision that grapples with an issue that occasionally arises once litigation is finalised.  That is, if there are several issues in dispute in the proceeding, and both parties have some measure of success on various issues, who should pay costs?

The usual rule is that ‘costs follow the event’.  That is, the successful litigant usually gets an order that the unsuccessful litigant should pay their costs.  Costs are not intended to be a penalty but rather to recompense the successful litigant for the cost of vindicating their rights.  Where one party is wholly successful, they would ordinarily expect a costs order in their favour.

It is less easy to apply that ‘rule’ where each party has some, but not total, success. Read the rest of this entry »

Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Elder abuse – wills and suspicious circumstances

Posted on March 9th, 2017

Helping elderly parents write a new Will can create difficulties, particularly if there are disputes in the family.

In a recent case of Estate Stojic, Deceased [2017] NSWSC 168, Mr Stojic had 5 children from different partners.  His last Will was made shortly before he died.  Mr Stojic ran a business and he chose one of his sons to run his company after his death.

Read the rest of this entry »

Bring up the bodies (with apologies to Hilary Mantel)

Posted on December 19th, 2016

The NSW Supreme Court recently dealt with an unusual dispute, as to who had the right to bury the body of a deceased person.

The plaintiff was the deceased’s sister and the defendant was the deceased’s de facto spouse. Both litigants, and the deceased were of Aboriginal heritage and one of the factors considered by the Court was the importance of cultural, spiritual and religious factors relevant to the place of burial in Aboriginal culture. Read the rest of this entry »

Who bears costs when a case is settled?

Posted on November 21st, 2016

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The NSW Court of Appeal recently had to consider whether costs should be awarded, in circumstances where a plaintiff accepted a settlement offer from a defendant which had been made prior to a hearing; but which was not accepted until after the hearing and when the Court’s judgment was reserved. The defendant’s offer was explicitly said to be “exclusive of costs”.  who bears costs settlement

The defendants later made an application that they be awarded the costs of proceeding, and the plaintiff contended that was a breach of the agreement, that entitled the plaintiff to damages. In this context it must be remembered that an agreement to settle litigation is a form of contract, and that usual contractual remedies are available for any breach of it. The Court rejected the plaintiff’s claim that the words “exclusive of costs” meant that it was an implied term of the contract that each party would bear their own costs.  Rather, consistent with decisions made in relation to formal Offers of Compromise, the phrase meant the settlement agreement did not deal with costs at all. The issue had to be dealt with under the general law rather than under the terms of a settlement contract.   Read the rest of this entry »

Traps with Powers of Attorney

Posted on September 20th, 2016

Traps with Powers of Attorney Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The NSW Supreme Court recently dealt with a case about the transfer of a property under a Power of Attorney (PoA). Briefly, a Mrs Cohen, an elderly and infirm lady, granted a PoA to her son. The son was also the sole beneficiary of the only known Will of his mother.

The son used the PoA to transfer a home unit from her name to his. This particular PoA expressly permitted the son to confer a benefit on himself.

By the time of the hearing Mrs Cohen was in aged care; the cost of her care exceeded her pension; and the NSW Trustee & Guardian had been appointed to manage her financial affairs. It wanted to sell the unit, to release funds to be used for Mrs Cohen’s care. It argued the transfer was improper, despite the PoA allowing the son to benefit himself. Read the rest of this entry »

Charity begins when the judge decides

Posted on August 26th, 2016

by Felicity Wardhaugh

Charity when judge decidesFelicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in wills and estate planning, commercial dispute resolution & litigation, and employment law.

A recent Supreme Court decision, namely, Estate Polykarpou; Re a charity [2016] NSWSC 409 demonstrates the importance of keeping a will up to date or making substitute provisions in a will.  The testator who made her will was obviously a fan of the Oprah Winfrey show and left half her estate to the Oprah Angel Network (“OAN”).  Read the rest of this entry »

Court costs – when do they not “follow the event”?

Posted on July 20th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Most of us are familiar with the expression “costs follow the event”; that is, in a litigated claim the loser usually is ordered to pay the winner’s costs. In some circumstances that rule can be varied. The NSW Civil and Administrative Tribunal (NCAT) recently dealt with an application to vary, based on two specific grounds.

A dentist was charged with, but acquitted of (under mental health legislation) indecent assaults against a patient. However the same facts resulted in disciplinary proceedings against him by the Health Care Complaints Commission. There was a finding of professional misconduct; and a declaration that, had the dentist not otherwise ceased to be registered, his registration would have been cancelled for a period of 18 months. The HCCC had sought a cancellation for 2 – 3 years. Read the rest of this entry »

The dangers of inaction

Posted on July 10th, 2015

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The NSW Court of Appeal recently considered a claim by an investor against the Commonwealth Bank, which failed to act on a written request, sent in September 2007, for certain high risk investments to be redeemed. The investor was aware that CBA had not acted on the request. Until mid December 2007 the investments could have been redeemed with little or no loss. After that, they significantly declined in value.

The investor sued CBA for breach of contract. It ultimately admitted breach, but argued the breach had not caused loss; that the investor’s own decision had caused or contributed to any loss and/or that the investor had failed to mitigate loss. Read the rest of this entry »

Can a grandchild contest a will?

Posted on June 5th, 2015

By Robert Lindsay

Robert Lindsay is a Director at Mullane & Lindsay in Newcastle and leads our Commercial & Property Law team.

Section 57 of the Succession Act lists those individuals who can contest the Will of a deceased person. They are termed “eligible persons” in the Act.

Section 57 (1) (e) provides that a grandchild of the deceased can contest a Will if he or she has been wholly or partly dependent on the deceased person (i.e. their grandparent). The fact that a person is the grandchild of the deceased is not sufficient to be an eligible person. The grandchild must establish that they have been in some way dependant on the deceased. Naturally, it is not difficult to establish that a grandchild has been wholly dependant on his or her grandparent if they live with the grandparent and are reared by the grandparent. However, to determine whether a grandchild has been partly dependant on his or her grandparent, the facts must be taken into consideration. Read the rest of this entry »