part iv claims - Gordon & Jackson

Report
WILLS AND ESTATES
CASE LAW UPDATE
Nathan McOmish
PART IV CLAIMS
IMO the will of Vourdoulidis
• Background
• S91 APA: any person may make a claim against a deceased estate for
provision for proper maintenance and support. Look at moral obligation
• Factors include relationships, other beneficiaries or applicants, financial
resources, disability, age, contribution, conduct, any other factor
• Grey v Harrison (1997) 2 VR 359: “an instinctive synthesis that takes into
account all the relevant factors and gives them due weight”
• Deceased died intestate, estate left to uncles overseas
• Plaintiff was first cousin, 50 yo, unable to work again, had
house + $200K
• Plaintiff helped care for disabled deceased over 15 years
• Modest estate of $220K, provision of $150K
• Part IV claim extended to first cousin
A presentation by
Nathan McOmish
PART IV CLAIMS
Busuttil v DeGabriele
• $850K estate, $100K left to 53 yo disabled step son
• Rest of estate went to persons with no special call on the
estate
• Plaintiff’s deceased father left assets to his wife, the
deceased’s stepmother
• Deceased changed her will 11 weeks after the plaintiff’s father
died, reducing his provision from 1/3 to $100K
• The plaintiff’s relationship with the deceased was “somewhat
superficial and tenuous” and “generally unwelcoming”
• Held – entitlement to a legacy of $250K
• Several cases now where step son has been successful, but all
where the applicant’s parent pre-deceased the step parent
A presentation by
Nathan McOmish
PART IV CLAIMS
Larkin v Borg
• Deceased died a widower, leaving $7.6 million estate to
daughter
• The Plaintiff was:
• A girlfriend of the deceased for 19 years
• 1 of 3 girlfriends
• 65 yo, no assets and lived on a pension
• Held, the relationship did not give rise to a moral duty:
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Mistress/girlfriend
Deceased had stronger relationships with 2 other women
Deceased never told the Plaintiff that he loved her
They did not present publicly as a couple
• Similar cases distinguished as “the emotional and spiritual
bonds were strong” and social units were “tantamount to a
family”
A presentation by
Nathan McOmish
PART IV CLAIMS
Dinakis v Zurcas
• $5.7 million estate, mostly left to son and issue. $950K left to each of
the two Plaintiff daughters
• Discovery sought for financial records of companies and trusts from
2006 to 2012. Plaintiff alleged tens of millions already conferred on
the Defendant
• General rule: Re Borthwick [1948] Ch 645, discovery will not be
ordered in TFM cases unless:
• Discovery relates to a question in the proceeding
• Special circumstances exist
• Application rejected on both grounds
• Order sought was disproportionately large, would add 6 months to
the litigation, increase trial from 3 to 10 days, increase costs
• Not consonant with s7(1) of the Civil Procedure Act 2010
• Just, efficient, timely and cost effective resolution of the facts in issue
A presentation by
Nathan McOmish
PART IV CLAIMS
Galvin v Semkiw
• Extension of time application. General principles:
• Does the Plaintiff have an arguable case?
• What was the period of delay and any explanation for it?
• Is there any prejudice to the beneficiaries if time is extended?
• Plaintiff divorced the deceased 29 years ago and at this time
entered into a s89 Family Law Act settlement. The Plaintiff
received the lion’s share of three properties
• Plaintiff said her circumstances were exceptional:
• 5 month delay due to oversight by plaintiff’s lawyers
• She entered into settlement under duress, no maintenance paid
• Held, there was an arguable case
• Extensions of time will often be granted if estate has not
been distributed
A presentation by
Nathan McOmish
VLRC
Succession Laws
• 1991 SCAG agreement to develop uniform succession laws
• Consultation paper dealt with law and options for reform
• Areas:
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Wills – protection of older and vulnerable will makers
Family provision
Intestacy – distribution on intestacy
Executors – rules for lawyers who act as executors and also carry out legal work
Payment of debts
Small Estates – more efficient ways to deal with
• Report before AG
A presentation by
Nathan McOmish

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