Succession

Stojic v Stojic [2018] NSWCA 28

In the New South Wales Court of Appeal:

SUCCESSION – wills, probate and administration – probate and letters of administration – validity of will – whether the deceased knew and approved the contents of the will – where suspicious circumstances exist - where testator has read the will – where findings of fact insufficient to determine testator’s knowledge and approval of the will - more findings necessary to resolve disputed questions of fact – new trial ordered

David Smallbone appeared with David Rayment for the Appellant.

Estate MPS, deceased [2017] NSWSC 482

From the New South Wales Supreme Court:

SUCCESSION — Family provision — Close personal relationship — Elements — Living together, domestic support and personal care — Separate residences — Nature and quality of relationship — Social intimacy
 
SUCCESSION – Family provision — Close personal relationship — Elements — Provision of domestic support and personal care — Not for fee and reward
 
SUCCESSION — Family provision — Conduct disentitling — Character and conduct of applicant — Need to examine totality of relationship
 
SUCCESSION — Family provision — Capacity of applicant to manage affairs — Form of relief — Protective orders

PROTECTIVE JURISDICTION —Family provision application – Capacity for self-management — Conduct of proceedings without tutor — Form of relief – Protective orders

Kim Morrissey appeared with Madeleine Bridgett for the Plaintiff.

Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicants – applicants are deceased’s wife and only adult son – both estranged from the deceased – no provision made in deceased’s estate for applicants – applicants ‘eligible persons’ – two-step approach in s 59 of the Succession Act 2006 (NSW) affirmed – what is “adequate”, “proper”, “provision”, “maintenance” and “advancement in life” pursuant to s 59(1)(c) of the Act – whether provision made by testator is “wise and just” and is right and appropriate assessed against community standards – court has discretionary power and is assisted by s 60 of the Act – effect of long term estrangement of both applicants – relevance of “bare widowhood” and “bare paternity” – each individual case must be assessed on its own unique circumstances

SUCCESSION – family provision and maintenance – principles upon which relief granted for wife – effect of the deceased remaining married to wife despite unilaterally abrogating duty to her and their son – applicant legally remains the deceased’s wife despite Uruguayan court order ending community of assets – deceased enjoyed financial benefit from not fulfilling his obligations to his wife – moral obligation cannot be escaped by repudiation or evasion – held inadequate provision made for wife by the deceased

SUCCESSION – family provision and maintenance – principles upon which relief granted for son – deceased’s performance of moral paternal obligations to his son was the antithesis of community expectations – extremity of circumstances in present case – adult son’s conduct in not attempting to re-establish relationship with the deceased does not disentitle him to provision – held inadequate provision made for son by the deceased

Dr Chris Ward appeared for the successful plaintiff

Michael John Askew v John Paul Askew [2015] NSWSC 192

EQUITY - Succession - claim for family provision order under Succession Act s 59 - Where applicant is an adult child of deceased - Where deceased did not make provision for applicant in will - Whether adequate provision made for proper maintenance, education and advancement in life of applicant - Consideration of matters under Succession Act s 60(2) - Disentitling conduct alleged - Value of the estate’s property in dispute - Extent of debts in dispute - Issues in respect of the plaintiff’s and defendant’s circumstances - Question of right to reside or life interest in favour of deceased’s brother - Plaintiff’s right to costs challenged - Order for cost capping sought by defendant - Application by plaintiff to reopen - Provision as a lump sum or percentage of net real estate proceeds.

Michael John Askew v John Paul Askew [2015] NSWSC 192

Australia and New Zealand Banking Group Limited v Desmond Patrick John Last [2014] NSWSC 1719

SUCCESSION – executors and administrators – management of estate of missing person by NSW Trustee – whether order should be made to commit the estate to management – whether defendant ‘missing’ – whether alternatives to management preferable – whether mortgagee has standing to seek order – held, order made for management