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 »

Can a carer contest a will?

Posted on May 15th, 2015

By Robert Lindsay

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

Under Section 57 of the Succession Act, a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death is a person eligible to make a claim under the provisions of the Succession Act 2006. A carer of the deceased can, in some circumstances, be deemed to be an eligible person. To be an eligible person the carer must live under the same roof as the deceased person. Also, the carer must not be providing services for reward. Sometimes there are circumstances where two people reside together and one of them provides services in the nature of care to the other, however the relationship does not constitute a de facto relationship. Read the rest of this entry »

Who can inspect your will?

Posted on April 17th, 2015

by Lana Black

Lana Black is a Solicitor at Mullane & Lindsay and practises primarily in  Commercial & Property Law.

While you are living no one other than yourself is entitled to inspect your will; of course this does not prevent you from allowing someone to inspect your will while you are living. But what happens after you die; who can inspect your will then?

Prior to 1 March 2007 a deceased person’s will could only be inspected (after the deceased person died) with the consent of the Executor appointed by the will. If Probate of the will was subsequently obtained, the will would become part of the public record at the time, however if Probate was not required, the Executor could potentially keep the terms of the will confidential. The Succession Act has, however, introduced provision for a significant number of people to have the right to receive a copy of a deceased person’s will.

Read the rest of this entry »

“You can sort it out when I’m gone!”

Posted on April 2nd, 2015

by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The NSW Supreme Court in Re RB, a protected estate family settlement [2015] NSWSC 70 recently found solutions to the problem of an 80 year old Husband who had become incapable of managing his affairs and who had not written a will.   He was in a nursing home with a prognosis of no more than 6 months to live.  He lacked mental capacity to make a will.  Read the rest of this entry »

What are “personal effects” in a will?

Posted on March 5th, 2015

by Tony Cavanagh

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

Early in 2015 the NSW Supreme Court dealt with a dispute in which a widow argued that, properly understood, her late husband’s gift to her of ‘household furniture and furnishings and personal effects’ meant she should receive a motor vehicle, shares, money in bank accounts and on term deposit; and what appear to have been some convertible notes.

The case hinged on the legal meaning of the phrase ‘personal effects’. The widow argued that, because the disclosed estate property did not refer to household furniture and furnishings or items such as clothing, watches, accessories or appliances, the expression ‘personal effects’ must have been intended, in that context, to refer to things like bank accounts and share holdings. Read the rest of this entry »

When can a carer contest a Will?

Posted on January 29th, 2015

By Robert Lindsay

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

Section 57(1)(f) of the Succession Act states that a person with whom the deceased person was living in a close personal relationship at the time of the deceased’s death is an eligible person who may commence proceedings seeking provision out of the estate of the deceased person.

This section means that in some circumstances the carer of the deceased person can make a claim if he / she has not been included as a beneficiary in the Will.  A close personal relationship is a relationship (other than a marriage or defacto marriage) between 2 adult persons (whether or not related by family) who are living together, one of whom provides the other with domestic support and personal care.

Read the rest of this entry »

When can a dependant contest a Will?

Posted on January 8th, 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 the person(s) who are deemed “eligible person(s)” who can contest a Will.  Included in the section is:

i. “a person who was at any particular time wholly or partly dependent on the deceased person and …. who was a member of the household of which the deceased person was a member”.

We were recently involved in a case where an elderly lady died and prior to her death for many years she was assisted by her younger sister, who did her shopping, took her to appointments and performed cleaning duties for her.  The older sister had no children and was pre-deceased by her husband.  She had a Will which was many years old and made no mention of the younger sister.  The beneficiaries of the Will were nieces and nephews who had not visited the older sister for many years prior to her death, and certainly gave her no assistance. Read the rest of this entry »