1. Family Provision Part 2
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2. Estrangement and other forms of relevant conduct
Notional estate
Estrangement and other forms of relevant conduct
Review of Family Provision
Discussion
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3. Notional Estate Introduced with Family Provision Act 1982;
Now part 3.3 Succession Act 2006.
Anti avoidance provision (limits on the extent to which inter vivos gifts or contract to increase liabilities can defeat claims)
Court can make orders to give effect to Family Provision order where
Property has been distributed from the Estate; or
There is a relevant property transaction
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4. Notional Estate Requirements
Has a relevant property transaction occurred?
Did the transaction take place before, on or after the death of the deceased?
Should a notional estate order be made?
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5. Has a relevant property transaction occurred?
The deceased person does, directly or indirectly, or does not do, any act
That results in property being
(a) held by another person; or
(b) subject to a trust; and
Full valuable consideration is not given.
[S 75 Succession Act 2006]
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6. Time limits for notional estate order
A notional estate order can be made when: (s80 SA):
(a) transaction took effect within 3 years prior to DOD with the intention (subjective) of the deceased of denying or limiting provision for the applicant;
(b) transaction took effect within 1 year prior to DOD or
(c) transaction took effect on the person’s death
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7. Should a notional estate order be made? (1)
Family Provision order made (s 78 SA) or costs order but not costs order only in favour of applicant [s78(2)];
The Court is satisfied that there is disadvantage per s 83 SA.
Estate must be insufficient – s 88 SA
One of the following applies:
S80(3)(a) - it is property held by or on trust for a person who (or by an object of a trust which) received property by virtue of a relevant property transaction; whether or not the property was the subject of the relevant property transaction;
S81 - there was a subsequent relevant property transaction if special circumstances warrant the making of the order;
S82(2)(a) - Property is held by the executor/administrator; or
S82(2)(b) – In the case of distributed estate; can make order against beneficiary’s assets or assets of the object of a trust [s82(2)(b)]
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8. Should a notional estate order be made? (2)
S 87 SA – Court must consider (a) importance of not interfering with reasonable expectations in relation to property; (b) the substantial justice and merits involved; (c) any other circumstances
S 89(1) SA – Court must have regard to:
(a) the nature and value of any property the subject of a relevant property transaction, distributed estate and property held by the executor/administrator;
(b) the nature and value of any consideration;
(c) changes in value of property the subject of the RPT or the consideration in the time since the transaction entered into or the distribution made;
(d) whether property of the same nature could have been used to obtain income in that time
(e) any other relevant matter
S 89(2)(3) SA – no order more than to the extent necessary
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9. When did the transaction occur?
s77(1) When the property becomes held by another person or subject to a trust.
s77(2) – s 76(2)(a)(c) or (d) transactions, immediately before death or upon the person ceasing to be able to exercise the power.
s77(3) – s76(2)(b) or (e) - immediately before death or on the occurrence of the other event referred to in those paragraphs
s77(4) – contract for less than full valuable consideration – on the entry into the contract
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10. Power of deceased person relevant
Fairbrother v Fairbrother [2013] NSWSC 461 – Windeyer AJ – receipt of proceeds of a life insurance policy not a relevant property transaction.
In order for there to be a relevant property transaction there must be an express power or implied power or authority for the deceased to bring about the transaction.
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11. S 83 SA – Disadvantage necessary
The Court must be satisfied that:
(a) as a result of the relevant property transaction the estate of the deceased; or to a person entitled to apply for an order; was disadvantaged
(b) the RPT involved the exercise of a right, discretion, power of appointment, that, if not exercised, could have resulted in a benefit to the estate or a person entitled to apply for an order;
(c) the RPT involved the exercise of a right, discretion, power of appointment, that, if exercised, could have resulted in a benefit to the estate or a person entitled to apply for an order; or
(d) the RPT involved the omission to exercise a right, discretion or power of appointment that could have been exercised to give a benefit to the estate or a person entitled to apply for an order.
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12. Notional Estate Examples
Examples given in s 76(2) SA
(a) power of appointment
(b) property held as joint tenants
(c) property held by another on trust where deceased had power to extinguish trust
(d) life insurance policy where deceased had the power to nominate beneficiary or to surrender or otherwise deal with the property
(e) company, fund, scheme; property becomes held by another or subject to a trust by reason of person’s death
(f) contract to dispose of property
Not exhaustive
S 79 SA – also can make order against distributed estate
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13. Notional estate – other matters
S 84 SA – A person’s rights are extinguished to the extent that they are affected by a notional estate order.
S 85 SA – More than one notional estate order may be made
S 90 SA – additional requirements for out of time applications - the Court must be satisfied that:
(a) The property was the subject of a relevant property transaction and the person who holds the property holds it as a result of the property transaction; the property is not vested in interest in any beneficiary under the trust; or
(b) there are special circumstances that justify the making of a notional estate order.
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14. Subsequent prescribed transaction example
Hardcastle v Perkuhn [1999] NSWSC 860
Under FPA s 25
Master Macready
3 days before DOD deceased transferred real estate to daughter
After DOD daughter sold real estate and gave the balance to her sons.
His Honour decided that this was a case in which s 25 FPA applied;
Instead declared that property of the defendant be notional estate;
Daughter ordered to bear own costs of application.
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15. Wade v Harding (overturned by COA in Cetojevic)
Estate Eileen Elizabeth Macaulay DOD 8/8/86
H1 – William Wade DOD 1975; Son Malcolm Blair Wade
H2 – Robert Samuel Dirks Macaulay DOD 28/8/86
Eileen’s Will gave entire estate to Robert if he survived by 30 days – he didn’t. Only $2,000 in estate excluding jointly owned property
No point in there being an FP claim if there was no notional estate.
Court considered whether the omission in failing to sever the joint tenancy was a “prescribed transaction”.
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16. Wade v Harding (overturned by COA in Cetojevic)
The inquiry must be whether the wife’s omission to act to prevent the (right of survivorship) coming into force with respect to the jointly held property was one in respect of which full valuable consideration was not given; or
Did she receive a fair equivalent for what she would have received had she severed the joint tenancy?
Court found that what was foregone in not severing the joint tenancy was received by continuing to be a joint tenant; no absence of full valuable consideration
Discussion
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17. Cetojevic v Cetojevic [2007] NSWCA 33
Horseley Park property purchased 1995; joint ownership by Nerad (DOD Oct 2000) and parents
Widow sold her own unit and paid proceeds towards mortgage
Widow filed Caveat over HP property claiming constructive trust and Family Provision rights (NB FP rights do not normally give rise to caveatable interest)
No other substantial assets in estate.
Overturned Wade v Harding; prescribed transaction found and notional estate order made.
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18. Other examples
Wardy [2014] NSWSC 473 – White J – transfer of assets to a discretionary trust, with a corporate trustee controlled by the deceased, is a paradigm example of a relevant property transaction.
Schaeffer v Schaeffer (1994) 36 NSWLR 315 – conversion of deceased’s ordinary shares in company to preference shares;
General statement – Campbell JA in Belfield v Belfield [2012] NSWCA 416 – one of the purposes of the notional estate provisions is to allow orders to be made against assets transferred into a structure over which the deceased person retained a measure of practical control, even though they lacked ownership
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19. Are there any jurisdictional limits?
Discussion
Consider s 64 Succession Act 2006
64 Orders may affect property in or outside jurisdiction
(cf FPA 11 (1) (b))
“A family provision order may be made in respect of property situated in or outside New South Wales when, or at any time after, the order is made, whether or not the deceased person was, at the time of death, domiciled in New South Wales.”
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20. Hitchcock v Pratt [2010] NSWSC 1508
Brereton J judgment on hearing of two notices of motion
Deceased domiciled in Victoria.
No real estate
Personal estate consisted of shareholdings of companies with registered offices in Victoria
No actual estate situated in NSW.
No notional estate provisions in Victoria.
Application of s 64 (jurisdiction) considered.
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21. Hitchcock v Pratt [2010] NSWSC 1508 (cont)
His Honour said that:
Family Provision law that purports to apply to property outside the state of a testator who dies outside the state has no sufficient connection with the state to be a valid exercise of statutory power.
But provisions can apply to:
Moveable property in NSW of testators who died domiciled elsewhere; and
Immovable property elsewhere of testators who died domiciled in NSW.
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22. Hitchcock v Pratt [2010] NSWSC 1508 (cont)
4 parcels of real estate in NSW; owned by companies with registered offices in Victoria.
Judgment also considers whether deceased had sufficient power to do or omit to do any act which might bring about a relevant property transaction.
Fiduciary duties that company directors have to shareholders is relevant
Ultimate shareholder was Pratt Family Holdings Trust.
Appointor was Deansworth Pty Ltd. Deceased was not a director. Shares held on trust for other family members.
Trust deed gave deceased power, jointly with wife, to appoint the shares in the company to himself.
Discussion - Did the deceased have sufficient power to cause a relevant property transaction?
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23. Hitchcock v Pratt [2010] NSWSC 1508 (cont)
Discussion - Did the deceased have sufficient power to cause a relevant property transaction?
Possibly – except that the trust deed provided that both the deceased and his wife were excluded from benefitting from the Pratt Family Holdings Trust and thus could not receive a distribution of capital or income
His Honour said:
“37 I would accept that it is at least arguable that Mr Pratt had the legal capacity to control Pratt Group Holdings, as trustee of the Pratt Family Holdings Trust. As such, he was, indirectly if not directly [cf Succession Act, s 75(1)], entitled to exercise the discretions to distribute income and capital given by the trust deed to the trustee. However, such entitlement was in respect of the income of the trust, and its capital, which (relevantly) were the shares in Pratt Consolidated Holdings. As already indicated, those shares are personalty, situated in Victoria. He did not have the entitlement, through his ability to control the trustee of the trust, to appoint or dispose of the real estate assets of the trustee’s subsidiaries.”
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24. Hitchcock v Pratt [2010] NSWSC 1508 (cont)
38 …However, it must be borne in mind that because Mr Pratt and Paula Hitchcock were excluded, and Sharilea Hitchcock was not a member of any class of beneficiaries, any such distribution could not have been in favour of any of them. It thus cannot be said that the omission to exercise such power was one that could immediately prior to Mr Pratt’s death have been exercised by him (or anyone else) so as to result in a benefit to his estate, or to an eligible family provision applicant. Section 83 could not therefore be satisfied.
39 Accordingly, in my view, the deceased had no relevant power to appoint or dispose of any of the four New South Wales real properties in a way which would be amenable to a designating order having regard to s 83. First, assuming he could control the trustee, any indirect power of appointment or disposition related to assets and income of the trust, relevantly the shares in Pratt Consolidated Holdings, and not in the real property held by companies much lower down the pyramid. Secondly, any such power could not be exercised in favour of himself, or of either of the plaintiffs, who were not qualified beneficiaries. Thirdly, to the extent that with his wife he had control as a director of the land holding companies, he was not entitled to dispose of the properties to himself or either plaintiff save for full valuable consideration.”
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25. Estrangement and other forms of relevant conduct
Notional estate
Estrangement and other forms of relevant conduct
Review of Family Provision
Discussion
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26. Examples of statements made by deceased in writing
“I, Rita Melba Andrew, do hereby declare that the reason Lynne Christine Andrew has been omitted from the bulk of "our assets" in our Will is that she has not acted as a daughter should in our lifetime, and should not be remembered as our other children have, in the dispersal of our assets” (statement made in writing, but not in Will).
Example 2
“I HAVE made no provision in this my Will for my daughter MARION GAY BOURKES [sic] because of her complete lack of concern or contact with me and other members of my family over a long period of time“ (statement made in Will)
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27. Examples of statements made by plaintiff
84 There were admitted into evidence, various letters addressed by the Plaintiff to the Deceased. The language used by the Plaintiff in those letters does not indicate a deep loving relationship between herself and her mother, at least at the time when the letters were written. The language of those documents, together with annexure J to the affidavit of Vivienne of 29 April 2006 is grossly offensive. (It is difficult to envisage a more hurtful or more insulting statement to a person of the Jewish faith (as was the Deceased, and also her husband) than to compare them with Adolf Hitler and to liken their family home to Dachau (the site of a concentration camp in which the Plaintiff’s own grandparents had been incarcerated).)
“Through this my mother, brother and sister have proved beyond any doubt that they do not care for or have my childrens’ interests at heart nor do they have a tender feeling for me. The best I can say for them is that they are bent on the destruction of myself and my children. So to add to the pressures of this year I must end it with grieving the loss of these three permanently.”
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28. Examples of statements made in writing
Burke v Burke [2014] NSWSC 1015; and appeal [2015] NSWCA 195 (example A)
Sedgwick v Varzonek [2015] NSWSC 1275 (example B)
Wright v Wright [2015] NSWSC 1333 (example C)
Andrew v Andrew [2011] NSWSC 115; and appeal [2012] NSWCA 308 (example 1)
Bourke v Keep [2011] NSWSC 88; and appeal Keep v Bourke [2012] NSWCA 64 (example 2)
Foley v Ellis [2007] NSWSC 1277; and appeal [2008] NSWCA 288 (by plaintiff); special leave application: Ellis v Foley [2009] HCATrans 143 (example 3)
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29. Palmer v Dolman [2005] NSWCA 361
Estate of William Lance Dolman
FP claims made by Mrs Dolman (ex wife) and by Fiona Dolman (daughter).
Marriage 1962; acquired Drummoyne property 1967; Son Gregory born 1963; Fiona born 1971; 1984 Gregory left the house; Parties separated but continued to live in same house; Deceased upstairs, Mrs Dolman and Fiona downstairs.
There was litigation which resulted in him retaining Drummoyne but being required to pay Mrs Dolman $500,000. (Trial judge found that deceased had fraudulently concealed assets in litigation).
First instance finding that Fiona had rejected her father and that she had maintained that rejection until his death. Deceased gave a statutory declaration expressing reasons for omitting her from his Will
Trial judge found that there was no suggestion of any ill treatment or improper conduct on behalf of the deceased which affected Fiona.
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30. Palmer v Dolman [2005] NSWCA 361 (cont)
On appeal; submitted that:
1. Error to say that estrangement negatived inferences of need;
2. Error to find that estrangement attributable to Fiona
Evidence was that prior to the separation Fiona did not enjoy much by way of fatherly affection; there was some evidence of fear on her part (doctor’s letter said that the deceased had a tendency to be demanding, critical and unpredictable)
Evidence that deceased had a parsimonious attitude in providing financial support to Fiona and her mother ($25 per week; left a note for Mrs Dolman “make an appointment with social security”)
Understandable feelings of resentment on behalf of Fiona
Not mentioned in first instance judgment; finding that Court did not take these matters into account
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31. Palmer v Dolman [2005] NSWCA 361 (cont)
NSWCOA did not find that Fiona’s behaviour was morally justified; rather that it was not difficult to understand it;
Also Fiona gave evidence of some reconciliation 3 days prior to death.
Considered Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 where there was a 46 year estrangement and relationship was described as “bare paternity”; considered to be an extreme case;
Mere estrangement not enough to disqualify plaintiff from satisfying the jurisdictional requirement.
Provision of $655,000 ordered (estate valued at $4.9m)
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32. Gorton v Parks; Estate of Calcott (1989) 17 NSWLR 1
Estate of Louis Russell Freeman Calcott
DOD 6/6/85; Will 16/5/1985
Gifts – Daughter 1 – 14 Harbord Street Thirroul plus personal property located there plus $20k
Daughter 2 – 16 & 18 Harbord Street Thirroul plus personal property at 18 and remaining money
Estate valued at $740,000
Daughter 1 and son both made FP claims
Deceased divorced from Mary Constance Calcott; evidence was that there was conflict and violence in the home; and that the divorce was young in the life of the children.
Deceased contributed little by way of maintenance - £2 5s p/week; later £2 10s by Court order
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33. Gorton v Parks; Estate of Calcott (1989) 17 NSWLR 1
Bryson J – “to my mind the statement that an adult son is prima facie able to maintain and support himself is an abstract statement, and is of little importance in view of the need for detailed examination of the facts of each case.”
“the idea that the moral obligations arising from paternity are diminished or do not exist if the parent withholds acknowledgement of the obligations of the child appears to me to be an idea from a distant age – there seem to have been large changes over long periods in the beliefs of the community about the moral duty to children…
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34. Bourke v Keep [2011] NSWSC 88
Macready AsJ at first instance awarded plaintiff legacy of $200,000
Estate Joyce Winifred Keep DOD 29/8/09; Will 7/7/92
Deceased had three children; Gwendoline, Graham and Marion
Clause 3 of the Will provided that:
“I have made no provision in this my Will for my daughter MARION because of her complete lack of concern or contact with me and other members of my family over a long period of time.
Estate consisted of home at Hurstville (occupied by Gwendoline and Graham for their whole lives) valued at $600,000 and cash after payment of estimated costs of $20,000
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35. Bourke v Keep [2011] NSWSC 88 (cont)
Evidence was that after she left the home in 1971 at the age of 20 to marry Robert (who was enlisted in the army to be posted to Singapore), Marion saw the deceased on 5 occasions; none went well; Marion attempted reconciliation on the deceased’s deathbed.
Marion had 4 children; separated from Robert in 2002/3; by property settlement she received $120,000. Her son Christopher suffered from a disability, did not work and received the DSP.
Marion did not work from 1972 to Thereafter she had a part time job with the Department of Education, earning $12 p/h for 18 hours p/w. She also received some medical benefits. Marion had multiple medical problems.
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36. Bourke v Keep [2011] NSWSC 88 (cont)
Marion was 59 y/o. She owned a 2004 Ford Territory (est $16,500), super ($380), shares ($2,929) and furniture (est $10,000). She had income of $1,648 p/m and was required to pay rent of $195 p/w.
Gwendoline was 62, single with no dependents. She was morbidly obese and had other medical conditions. She contributed to the deceased’s estate by paying $1k for half the cost of construction of the garage of the Hurstville property; $4k for half the cost of aluminium cladding; $1.2k for the cost of the front verandah. She had savings of $61k. She received DSP of $1,413 p/m
Graham was 55, single with no dependents. He had a 1992 Holden station wagon (est $4k), super ($8,000), Mastercard debt ($3k) and he received a Newstart allowance of $918 p/m
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37. Bourke v Keep [2011] NSWSC 88 (cont)
His Honour cited with approval an unreported judgment of Young J Walker v Walker, 1996:
“the important matter is not fault but whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than she in fact did to constitute proper or adequate provision for the plaintiff”.
At [80] his Honour referred to Bergin CJ in Eq in Ford v Simes [2007] NSWCA 357
His Honour’s assessment of the facts is at paragraph [81]
Note no evidence regarding the cost of finding replacement accommodation for Gwendoline and Graham
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38. Keep v Bourke [2012] NSWCA 64 The Defendants appealed.
Macfarlan JA found that estrangement was relevant – would have reduced provision from $200,000 to $100,000.
Barrett JA rejected submission that jurisdictional test not satisfied.
At [34] His Honour summarised the objective facts regarding the material and financial circumstances of each party.
At [39] His Honour assesses the cause of the estrangement.
His Honour found that the primary judge addressed all relevant matters.
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39. Keep v Bourke [2012] NSWCA 64 Barrett JA (cont)
At [49] his Honour noted that the primary judge correctly found that Marion was not blameless in the matter of estrangement, and that her conduct meant that her claim on the deceased’s bounty was reduced.
[50] However, his Honour found that the primary judge did not give effect to that finding in the order that was made.
Order that legacy be reduced from $200,000 to $175,000 and that Marion pay the costs of the appeal.
Tobias AJA agreed with Barrett JA
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40. Andrew v Andrew Andrew v Andrew [2011] NSWSC 115 Hallen J
 Estate Rita Melba Andrew - Claim by daughter.
Will provided 40% of home at Chifley to the executor son.
$10,000 pecuniary legacy to the Plaintiff.
Residue to be divided between Defendant, Jennifer, Lisa and Tracey (ie other children).
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41. Andrew v Andrew [2011] NSWSC 115 (cont)
Net distributable estate $800k.
Reasons given in Will.  
Plaintiff had no assets apart from super ($4k). She was looking for work. Shared care of foster child. Sought altruistic goals rather than material gain. Centrelink Newstart allowance. Plaintiff's son Nicholas was 20 and was not dependent on her. Plaintiff resided in her friend's flat.
Estrangement and some disentitling conduct; lack of contact over long periods (no evidence about cause) and general put downs.
In considering the totality of the relationship his Honour determined that additional provision was not appropriate.
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42. Andrew v Andrew [2011] NSWSC 115 (cont)
“[141] I have set out the provision made for the Plaintiff in the deceased's Will. Judged by quantum and looked at through the prism of her financial and material circumstances, adequate provision for her proper maintenance or advancement in life was not made by the Will of the deceased, or by the operation of the intestacy rules, in relation to the estate of the deceased, or both.
[142] Whilst an additional lump sum, by way of advancement in life, in other circumstances, would be appropriate, that is not all that I am required to consider at the first stage. The totality of the relationship of the Plaintiff and the deceased, the age and capacities of the other beneficiaries, and the claim of each on the bounty of the deceased, are very relevant factors in determining the answer at the first stage.
[143] Those considerations lead me to find that there was no failure, on the part of the deceased, to make adequate provision for the Plaintiff. Accordingly, the Plaintiff fails at the jurisdictional stage. That finding concludes the matter and must lead to the dismissal of the Plaintiff's proceedings.
[144] However, even if I were wrong in coming to that conclusion, the same considerations, which I summarise below, would, at the second stage, produce the result that, as a matter of discretion, I would not be satisfied that a family provision order ought to be made.”
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43. Andrew v Andrew [2012] NSWCA 308
Plaintiff appealed.
Successful – in lieu of provision of $10,000, Plaintiff to receive $60,000, drawn unequally from provision made for others.
Defendant to pay Plaintiff's costs including of appeal.
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44. Andrew v Andrew [2012] NSWCA 308 (cont)
Allsop P (on estrangement) “Given the fact of estrangement and not hostility, it is not to be supposed that if the testator had known and appreciated all the circumstances of the appellant, including the detail of the appellant's lack of means, her responsibilities to a young foster child and her inability to see her own adult son through lack of funds, that she would have closed her bounty to her daughter."
Barrett JA dismissed the appeal.
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45. Andrew v Andrew [2012] NSWCA 308 (cont)
Basten JA (on estrangement) Estrangement does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties. It is a term sometimes applied to the natural process of separation of child from parent, which often takes place in adolescence but which may continue into adult life sometimes without resolution of the underlying tension. At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially advantageous when compared with other claimants on the testator's conscience.
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46. Burke v Burke [2014] NSWSC 1015
Burke v Burke [2014] NSWSC 1015, Rein J $1.25m estate. The deceased had left her estate to her two other children and a $100,000 legacy to her grandchild (the son of the plaintiff). The deceased had written a letter specifically identifying why the appellant was left no provision, based on his "total estrangement" from the family. Terry initially sought a $400,000 provision, reduced to $300,000 by trial No dispute that Terry was in financial need, having been declared bankrupt. Summons dismissed with costs. .
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47. Burke v Burke [2015] NSWCA 195 . Terry contended that:
the primary judge had wrongly attributed little significance to an incident at Ashfield bowling club (the “Club incident”) which Terry maintained was the material cause of the estrangement;
that the estrangement was due to a misunderstanding to which each had contributed;
that he had attempted a reconciliation in 2009/2010; and
that in those circumstances, having regard to the size of the estate and his financial need, in the absence of callousness or hostility on his part:
the deceased was under a duty to make provision for him.
the primary judge’s finding that no provision ought to have been made for him did not reflect current community attitudes and values and constituted appellable error. .
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48. Burke v Burke [2015] NSWCA 195 (cont)
Held dismissing the appeal (Ward JA; Meagher and Emmett JJA agreeing):
the primary judge’s assessment of the significance to be attributed to the Club incident as one forming part of a pattern of conduct was not shown to be in error: [61]
the primary judge’s conclusion that telephone calls made by Terry to the deceased’s nursing home did not bespeak an attempt at reconciliation and that Terry’s contact was motivated by a desire to ascertain if he was going to receive any inheritance was not contradicted by the evidence: [78]
there is no rule or principle that in cases of significant need there is an obligation to make provision for an adult child, irrespective of any estrangement, except in circumstances of hostility or callousness: [94]
Appeal dismissed with costs
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49. Estrangement and other forms of relevant conduct
Notional estate
Estrangement and other forms of relevant conduct
Review of Family Provision
Discussion
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50. Review of Family Provision
Focus on the legislation
Eligibility
Has inadequate provision been made?
S 60(2) SA factors
Is conduct including estrangement relevant, or is it a distraction?
What provision should be made?
Is notional estate an issue?
Practice Note SC Eq 7
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51. Petkovic v Koutalianos [2016] NSWSC 1817
[128] The Plaintiff accepted that the Defendant would have to sell the Kingsgrove property to enable her to receive the amount that she was seeking by way of family provision order, or any part of it. “HIS HONOUR Q. As I understand the submissions made on your behalf A. Yes. Q. at least one element of what you are seeking is sufficient to enable you to pay off what you estimate the mortgage secured on the house will be? A. Yes. Q. At least since 1984, she's lived in the Kingsgrove property. You lived in the Umina Beach property since 2004, I think you told me earlier. So, the effect of what you're seeking is that the house in which you live should be retained but the house in which she has lived for many years more should not be retained, is that the effect of what you're seeking? A. She, I just, I wanted something that's small. It's crumbling down. It's, it's, it's very (witness indicated). Q. It's very? A. It's, it's very old. It's crumbling down. The carpet stinks. There's holes in the kitchen. Wind comes through in winter. The bathroom is in disrepair. She can't maintain it.”
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52. Petkovic v Koutalianos [2016] NSWSC 1817 (2)
[129] The Defendant stated that as she has lived there since December 1984, she wishes to remain living in the Kingsgrove property. She acknowledged that her income meant that she had to pay large expenses by instalments; that, hypothetically, if she had expenses for other repairs to the Kingsgrove property, she would not be in a position to pay those other than by instalments; that she would need to find a repairer who was prepared to be paid in this way before she would be able to carry out the repairs; and that she had sought the assistance of a charitable organisation, and then had contacted the local Council, to try to get someone to come and mow the lawns. [130] Notwithstanding her modest income and the difficulties identified, the Defendant’s resolve to live in the Kingsgrove property means that, currently, she makes ends meet and pays her liabilities as best she can.
18 January 2017
Craig Birtles 2017

53. Estrangement and other forms of relevant conduct
Notional estate
Estrangement and other forms of relevant conduct
Review of Family Provision
Discussion
18 January 2017
Craig Birtles 2017

54. Discussion point (from part 1)
If a solicitor is given instructions to draft a Will and the testator expressly states that he or she wishes to disinherit (or simply does not wish to benefit) a person who would have an expectation to inherit:
Should the solicitor give advice about:
(a) the existence of Family Provision legislation?
(b) how the Court would determine a claim?
(c) what in the solicitor’s opinion the Court might award a prospective plaintiff?
18 January 2017
Craig Birtles 2017

55. Calvert v Badenach Calvert v Badenach [2014] TASSC 61
Calvert v Badenach [2015] TASFC 8
Badendach v Calvert [2015] HCA 18
18 January 2017
Craig Birtles 2017

56. Calvert v Badenach
The client was 77 years old at the time he gave the instructions to draft the will described above, and he was terminally ill. He died later in the same year having executed a will drawn in accordance with his instructions. However, because of events which took place following the client's death, his testamentary intentions could not be carried into effect. The client had previously been married and there was a daughter of that marriage for whom he made no provision in his will. Following his death, his daughter brought proceedings under the Testator's Family Maintenance Act 1912 (Tas) ("the TFM Act") and was successful in obtaining a court order that provision be made for her out of the client's estate. The combined effect of that order and a further order – that the parties' costs be paid out of the estate and taxed on a solicitor and client basis – was to substantially deplete what was not in any event a large estate.
18 January 2017
Craig Birtles 2017

57. Calvert v Badenach
The respondent brought proceedings against the solicitor and the solicitor's firm in which the respondent claimed that the solicitor had been negligent in failing to advise the client of the possibility that his daughter might make a claim under the TFM Act and the options available to him to reduce or extinguish his estate so as to avoid such a claim. In particular, the respondent alleged that the solicitor failed to advise the client that he could avoid exposing his estate to a claim under the TFM Act either by converting his and the respondent's interests in the two properties to joint tenancies, so that those properties would pass to the respondent by survivorship, or by making inter vivos gifts to the respondent ("the inter vivos transactions"). The respondent alleged that these acts of negligence were breaches of the duty that the solicitor and the law firm owed to the respondent as the intended beneficiary of the client's estate. The solicitor did not give evidence in the proceedings. His file notes relating to the preparation of the will were tendered by consent. They simply recorded the client's instructions to prepare a will leaving the client's whole estate to the respondent if the respondent survived the client, or to the respondent's children in equal shares if the respondent predeceased the client. There was no evidence touching upon the question of what the client might have done had he been apprised of the possibility that a claim under the TFM Act might be made against his estate.
18 January 2017
Craig Birtles 2017

58. Other professional negligence
Fischer v Howe [2013] NSWSC 462; (2013) 85 NSWLR 67 Howe v Fischer [2014] NSWSC 286 Maestrale v Aspite [2012] NSWSC 1420 Maestrale v Aspite [2014] NSWCA 182
18 January 2017
Craig Birtles 2017