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Summary of 2017 Family Provision Cases

Posted by on Oct 8, 2017 in Articles, Contesting an Unfair Will Articles, Litigation Articles, Wills & Deceased Estates Articles |

  Estate MPS, deceased 4/5/17 – Value of Estate/ Notional Estate – $2,000,000 Plaintiff claimed a close relationship with deceased providing support and personal care  for over 2 years. Deceased’s brother entitled to whole estate on intestacy. Plaintiff awarded $550,000 (27.5%) plus costs. Kohari v NSW Trustee & Guardian 18/8/17 – Value of Estate/ Notional Estate – $1,000,000 Plaintiff, the son of the deceased’s former marriage, made a claim where estate left to de facto wife of  26 years. Deceased had one other son and step-son. Plaintiff awarded $100,000 (10%) with costs to be decided. Mitar v Mitar 26/5/17 – Value of Estate/ Notional Estate – $3,191,250 Plaintiff, the son of the deceased made a claim where there were 3 other children. Plaintiff awarded $964,286 (30%) with costs to be decided. Charlwood v Charlwood 1/3/17 – Value of Estate/ Notional Estate – $816,274 Plaintiff, one of two sons, made a claim after half of the estate was left to him by the deceased. Other brother was in superior financial position and Plaintiff cared for deceased and had health issues. On 10/8/17 Plaintiff  allowed additional provision of loan from estate of up to $150,000and to purchase a property to live in plus costs. Meres v Meres 28/3/17 – Value of Estate/ Notional Estate – $1,201,917 Plaintiff, one of two sons, made a claim where, in effect, he was left half of the estate by the deceased, but had no earning capacity, a close relationship with the deceased and medical conditions. Plaintiff’s claim was dismissed with costs to be decided. Jodell v Woods 1/3/17 – Value of Estate/ Notional Estate – $1,800,000 Plaintiff, one of two daughters, made a claim after the deceased left the whole estate to the other sister. Plaintiff not close to the deceased and had no earning capacity. Plaintiff awarded $425,000 (23.6%) with costs to be decided. Spata v Tumino 24/2/17 – Value of Estate/ Notional Estate – $685,416 Plaintiff was the son of the deceased’s late husband’s former marriage but claimed as a dependent member of the deceased’s household. As the Plaintiff was unable to prove he was dependent on the deceased his claim was dismissed with costs to be decided. Barbanera v Barbanera & Ors 5/4/17 – Value of Estate/ Notional Estate – $2,750,000 Plaintiff, one of four children of the deceased, made a claim after the deceased left the whole estate to the other 3 children. Was claimed against him that he deliberately estranged himself from the deceased and had no need for provision due to his personal wealth. Plaintiff’s claim was dismissed due to his comfortable financial position with costs to be decided. Carusi-Lees v Carusi 18/5/17 – Value of Estate/ Notional Estate...

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Contesting an Unfair Will

Posted by on Oct 5, 2017 in Wills & Deceased Estates Articles |

1.Overview 2.Eligible Persons 3.Time Limit to make a Claim 4.Commencing Proceedings 5.Other Requirements when making a Claim 6.Considerations for Executors 7.When a Family Provision Order will be made 8.Procedures in Court 9.Mediation 10.Cautionary Note for Executors on Settlements at Mediation 11.The Hearing 12.Costs 13.Conclusion   1.Overview A person might want to challenge a Will they have been left out of or consider they were not left a fair share of the estate by the deceased maker of the Will or on intestacy if there was no Will. On the other hand, a person may have been appointed executor of a Will or administrator in the case of intestacy and wants to know what is involved in defending a claim for what is called a family provision order. Here are some basic facts for claims in New South Wales: *    An application for a family provision order must be filed with Supreme Court of NSW within 12 months of the deceased’s date of death. *    The applicant must prove they are an “eligible person” as defined by the Succession Act 2006 NSW. *    The Court must determine that adequate provision was not made for an eligible person’s maintenance, education or advancement in life before it can make an appropriate order. *    The Court will take into account the eligible person’s needs at the time of the hearing. *    Mediation is required to take place before any hearing once the parties have filed their evidence in Court. The vast majority of cases are settled at the mediation. *    Generally the costs of a successful application for a family provision order are paid out of the estate. 2. Eligible Persons Section 57(1) of the Succession Act limits applications for a family provision order to eligible persons comprising: (a) the spouse of the deceased person at the time of the deceased’s death; (b) a person who was in a de facto relationship with the deceased at the time of their death; (c) a child of the deceased person; (d) a former spouse of the deceased person; (e) a person: (i) who was at any time wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased or was, at any time, a member of the same household as the deceased; and (f) a person living in a close personal relationship with the deceased at the time of the deceased’s death. Although it should be straightforward to determine if a person is a spouse of former spouse of the deceased, much greater complexity can arise in order to establish whether a person was the de facto partner of the deceased at the time of their death. While it it not necessary for...

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Do You Need More Than A Will? – Other Things To Consider

Posted by on Jun 1, 2017 in Articles, Conveyancing Articles, Wills & Deceased Estates Articles |

Most people understand the importance of a Will i.e. it is a document by which a person disposes of their assets after their death. But the crucial thing to remember is that a Will only operates from the date of one’s death. What will happen to your assets in a situation where you are still alive but due to an accident or some other reason you are not of sufficient mental capacity to manage your own affairs? And in such a case who will make necessary decisions about your medical treatment or where you are to live? That is why it is well worth considering two other valuable documents that more and more people these days are entering into at the same time as their Will being an Enduring Power of Attorney and an Appointment of Enduring Guardian. Put simply, the presence of all three documents means that all your affairs will be taken care of both before and after your death. Let us take a closer look at the other two documents: Enduring Power of Attorney Some of the features of this document are: (a) It appoints someone (an attorney) to have authority to make decisions about your property and financial affairs; (b) It does not authorise anyone to make decisions concerning your lifestyle, health or personal affairs; (c) It will still be valid even if you lose mental capacity provided a prescribed person, such as a lawyer, explains the document to you and signs a certificate to that effect; (d) It will operate until you cancel it, the attorney no longer wishes to act or you die; (e) Before an attorney can use the document he or she has to accept it meaning they must sign it; and (f) In order to allow the attorney to deal with land owned by you the Enduring Power of Attorney has to be registered at Land & Property Information which involves a registration fee. Appointment of Enduring Guardian Some of the features of this document are: (a) It appoints someone (an enduring guardian) to make personal, lifestyle or health decisions on your behalf when you are not capable of doing so yourself; (b) The enduring guardian can make decisions such as where you live, what services are provided to you and what medical treatment you receive; (c) It only comes into effect when you lose mental capacity and is effective only during the period of such incapacity. Therefore, although it may never become operational it makes sense to plan for unforeseen events; (d) It must be witnessed by a prescribed person such as a lawyer who must explain the document to you and sign a certificate to that effect; (e)...

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