1: Bernard & Bernard [2019] FamCA 421 | September 11, 2020

Court or Tribunal: Family Court of Australia
Catchwords: Contributions from Parents, Estate Planning, Family Trust, Family Trust, Inheritance, Inheritance, Matrimonial Property, Proceedings to Alter Property Interests, Property, Property Settlement, Rights of Executors and Administrators, Testamentary trust, Wills, Wills & Probate
Judges:  Henderson J


Background: The husband’s father died in 2012 and by his will established a testamentary trust for each of the husband and the husband’s sister. The husband was the primary beneficiary, and the class of other beneficiaries included his spouse, children, grandchildren and great-grandchildren. Despite being named as the primary beneficiary, the husband’s sister was the sole trustee of the trust. The husband was not given a power of trustee appointment and he had no other legal title to the assets of the fund other than being a beneficiary. The sister’s trust mirrored that of the husband’s in that the husband was the sole trustee of her trust. The two trusts operated a partnership which ran the family business of which the husband was the manager. The trusts also owned a commercial prop 
 
  [Legal Issue]In this case the divorcing husband and his sister both had testamentary trusts established under the Will of their father. Both were the trustee of the other’s trust. Neither was a beneficiary of the other’s testamentary trust. The Court considered whether assets held in the husband’s testamentary trust formed part of the matrimonial property pool available for distribution between the husband and the wife after divorce.   [Court Orders]The Court rejected the wife’s claims and held that whilst the assets of the husband’s trust were a financial resource it was not matrimonial property on the basis that: -the husband had no control over his sister as the trustee; -the husband could not direct the assets or income of the trust to any person; -the trustee could apply the income of the trust for the benefit of other beneficiaries of the trust, and not just the husband; -the mere fact that the husband’s trust was identica     


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2: Re Cresswell [2018] QSC 142 | June 20, 2018

Court or Tribunal: Supreme Court of Queensland
Catchwords: Assisted Reproduction, In Vitro Fertilisation, Parens Patriae, Posthumous Sperm Donation, Sperm Donation, Succession
Judges:  Brown J


Background: A Queensland woman applied to the Qld Supreme Court in Brisbane for the right to use her dead boyfriend’s sperm to have a baby. Ayla Cresswell’s partner Joshua Davies died suddenly in August 2016, and within hours the court granted permission for his sperm to be harvested. Ms Cresswell sought approval from the court to use the sperm, which is being held at an IVF clinic. 
 
  [Legal Issue]The court decided the sperm was capable of being deemed “property” and that Ms Cresswell was entitled to permanent possession of it. Ms McMillan said while the resulting child would not have the benefit of a father, there was support from a paternal and maternal grandfather.   [Court Orders]The applicant is entitled to possession and use of the spermatozoa to facilitate pregnancy and the Queensland Fertility Group (QFG) is to transfer directly the spermatozoa to Women’s Health Only (WHO) on the applicant’s direction.     


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3: Mead -v- Lemon [2015] WASC 71 | February 26, 2015

Court or Tribunal: Supreme Court of Western Australia
Catchwords: Family Provision, High Value Estates, Large Estate, Wills & Probate
Judges:  Sanderson Master


Background: Olivia Jacqueline Mead was the 19 year old love-child of WA mining magnate Michael Wright, where upon his death Olivia had been left $3 million from the estate, estimated at more than $1 billion. The 19-year-old challenged the will in the Supreme Court of Western Australia this month, suing executor David Lemon and demanding $20 million worth of cash and luxury items. She claimed to have been left without adequate funds for her proper maintenance, support, education and advancement in life. Ms Mead was provided for with a $3 million trust, which she could not touch until she was aged 30, and the trust included a number of provisions, including a clause that Ms Mead would be excluded if she converted to Buddhism or Islam, or even if she had an association with a person who practice 
 
  [Legal Issue]In awarding an unprecedented $25 million cash on condition of forfeiting any right in the trust set up under the will, Master Sanderson mostly focussed on the size of the estate and the fact that, wisely invested, Olivia and her family would never want for anything ever again. In the context of the estate he commented that that sum was “little more than a rounding error”. He commented though that it was not about fairness or about compensating Olivia for the deceased’s limitations as a father but considered the position of a wise and just testator, that of community expectation and the duties of a parent arising under the Act. The award of such an enormous sum is extraordinary, particularly as it is higher than Olivia sought herself. Nonetheless the principles applied will   [Court Orders]The third daughter of late mining heir Michael Wright has succeeded in her bid to extract much more than she was left from his will, with a judge ruling she should get $25 million.     


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4: Kennon v Spry; Spry v Kennon [2008] HCA 56 | August 21, 2014

Court or Tribunal: High Court of Australia
Catchwords: Family Trust, Wills & Probate
Judges:  French CJGummow CJHayne JHeydon JKiefel J


Background: This involved a senior Melbourne QC. Before he was married he had set up a trust, and he was the trustee and was entitled to vary the terms of the trust. The beneficiaries were himself, his siblings, their children and their spouses. By two amendments, both the husband and the wife were excluded from the list of beneficiaries. The last amendment was effected at a time when the marriage was in trouble. The husband as trustee subsequently moved several million dollars from the trust to their children and to trusts for the children. 
 
  [Legal Issue]The existence of a family trust has caused difficulties in Family Law property disputes, because if, say, the husband is a beneficiary under a trust, he does not actually own anything until a distribution is decided upon. The Family Court's power is to deal with "property", and so there were real doubts about the court's ability to make orders about a possible entitlement under a trust.   [Court Orders]The legal ramifications with family trusts as a result of Kennon and Spry suggests that a family trust is not intended to be used to disadvantage a spouse following a marriage breakdown. The use of s.106B, s.85A are powerful weapons and when you weave in submissions concerning the right of due administration and due consideration these make it very difficult to exclude a spouse from some entitlement under a trust. However we may not have heard the end of the case as questions of enforcement      


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5: Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza and Ors [2014] QSC 37 | March 13, 2014

Court or Tribunal: Supreme Court of Queensland
Catchwords: Estate Planning, Estoppel by Conduct, Family Provision, Family Provision, Family Trust, Family Trust, High Value Estates, Large Estate, Requirement of Adequate Maintenance, Succession, Succession, Wills
Judges:  Martin J


Background: Steven Darveniza, the eldest son of Bojan Darveniza, took his father’s widow to the Supreme Court to get a share of the estate, claiming he had worked for his father for many years. Bojan Darveniza died in 2010, aged 78, leaving most of his estate to his second wife, Xiao Hong Darveniza, now known as Jane, who was 30 years younger than him. Multi-millionaire Bojan Darveniza was a hardworking, astute investor with a talent for turning run-down properties into rental goldmines, amassing a fortune. But to his older children, Bojan was a tyrant who ruled them with an iron rod, making them work hard in the family business after school and on weekends. Bojan had eight children – Steven and Tania with first wife Lindsay; Natasha, Jonathon and Andrea with his ex-housekeeper de fact 
 
  [Legal Issue]This case involves an examination of the familial and financial relationships of the Darveniza family. Steven Darveniza has brought two matters before the Court. In the first he seeks an order for provision (pursuant to s 41 of the Succession Act 1981) from the estate of his deceased father, Bojan Darveniza (“the provision claim”). In the second, he seeks declarations about, and transfers of interests in, a number of family companies (“the trust claim”). He also seeks damages pursuant to s 82 of the Trade Practices Act 1974 and consequential orders (“the company claim”).    [Court Orders]Bojan’s personal estate was worth $40 million at the time of his death, but the net value was now between $26 and $28 million, the court heard. Justice Martin said Steven deserved better provision from his father’s very large estate because he had worked long and hard for Bojan, contributing to the growth of his property interests. Two reasons for his father not providing for him in his will were misconceived or based on a misunderstanding, the judge said. He also accepted Steven co     


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6: R (Plaintiff) v Bong & Ors [2013] SASC 39 | March 19, 2013

Court or Tribunal: Supreme Court of South Australia
Catchwords: Domestic Partner Declaration, Family Provision, Meaningful Relationship, Relationships, Succession
Judges:  Burley J


Background: The plaintiff and K lived together in a sexual relationship from time to time over a period of about 38 years. Prior to meeting K, the plaintiff had two relationships with women, and had a child from each relationship. The plaintiff married three further times during the period he knew K. According to the plaintiff, he maintained a relationship with K throughout each marriage.  
 
  [Legal Issue]The plaintiff sought a declaration pursuant to the Family Relationships Act 1975 (FRA) that he and K were, on a given date, domestic partners and, if such a declaration was granted, an order for provision out of the estate of K.   [Court Orders]The court found there was a mutual friendship, including a sexual relationship, which manifested itself often from 1973 to 2011. The court also noted that the plaintiff looked after K when he was unwell. In all the circumstances, the court found it was in the interests of justice to make a declaration that there existed between the plaintiff and K the required relationship entitling the plaintiff to make a claim out of K’s estate.     


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7: Miller v Duncan Robert Warren as Executor of the Estate of Muriel Josephone Costigan [2009] WASC 115 | October 29, 2012

Court or Tribunal: Supreme Court of Western Australia
Catchwords: Family Provision, Family Provision, Moral Duty, Succession, Succession, Wills
Judges:  LE MIERE J


Background: John Costigan and Muriel Josephine Costigan were married for 62 years before Mr Costigan died on 9 July 2004. There were four children of the marriage (one has since deceased): The plaintiff was the second daughter, Meredith. The defendants were the first and third daughers, Suzanne & Robynne. Muriel Costigan, the mother, was deceased on 20 May 2007 and left a will. Under her will the mother left the plaintiff $50,000 in shares. The mother left assets totalling $1,780,538.96 to Suzanne and Robynne in equal shares.  
 
  [Legal Issue]The plaintiff claims that she has been left without adequate provision for her proper maintenance, support or advancement in life and applies under s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act) for an order that such provision as the court thinks fit be made out of the estate for that purpose. The legal issue for the Court will consider whether adequate provision had been made for the plaintiff's proper maintenance, support or advancement in life. Whether the deceased had a moral duty to make further provision for the plaintiff after 30 years of estrangement. Turns on own facts   [Court Orders]Will varied to make further provision for plaintiff. The will of the deceased should be varied by providing that the sum of $260,000 be paid to the plaintiff from the estate after the distribution, in accordance with the will, of the furniture, paintings, jewellery and other household goods and the proceeds of the sale of the Investa Property Trust shares, as well as the Department of Veterans Affairs one off payment.     


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8: McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484 | October 29, 2012

Court or Tribunal: Supreme Court of NSW
Catchwords: Family Provision, Family Provision, Succession, Succession
Judges:  Brereton J


Background: The deceased James Rogers (the father), who died on 10 April 2004, was twice married: first to Janice Patricia Teefey – now, McDougall - from whom he was divorced; and secondly to Margaret Anne McNamee – now Rogers - his widow and the defendant. The plaintiff James ("Jamie") Patrick McDougall (the son) was the only child of the deceased’s first marriage; there are no children of the marriage to Mrs Rogers. By his Will, dated 7 May 2001, probate of which was granted to Mrs Rogers on 27 August 2004, the deceased appointed Mrs Rogers to be his executor and trustee and gave all his real and personal estate whatsoever and wheresoever situate to her. As such, the father's Will made no provision at all for his son, leaving all his assets to his second wife. 
 
  [Legal Issue]Claim by adult son of first marriage –estate left to widow of second marriage – plaintiff estranged from deceased following his parents’ divorce and assumed name of his stepfather – whether estrangement is conduct disentitling – plaintiff able to support himself but in marginal circumstances - where plaintiff may in case of need expect support and provision from mother and stepfather – competing claim of widow - primacy of deceased’s obligation to widow - where estate insufficient to provide adequately for maintenance of widow – obligation to maintain widow prevails over any obligation to advance adult son – summons dismissed – COSTS – unsuccessful claim by adult son - where claim not unreasonably brought – where adverse costs order would falsify finding that plaint   [Court Orders]The claim by the son ("Jamie") for provisions from his father's Will is dismissed. No order as to plaintiff’s costs. Defendant’s costs to be paid out of the estate.     


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9: Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478 | May 23, 2011

Court or Tribunal: Supreme Court of NSW
Catchwords: Posthumous Sperm Donation, Rights of Executors and Administrators, Sperm Donation, Succession
Judges:  R A Hulme J


Background: What right does a woman have to take sperm from the body of her deceased partner so that she may conceive a child? Ms Jocelyn Edwards seeks a declaration that she, as the administrator of the estate of her late husband, Mr Mark Edwards, is entitled to possession of sperm that was extracted from his body shortly after his death. Although there is no direct evidence, the clear and only inference is that she desires to have a child with the aid of assisted reproductive treatment. 
 
  [Legal Issue]Ms Edwards argued that, as the administrator of her late husband's estate in relation to the disposal of his body, she has a right to possession of any part thereof and no other party has a superior right. The Attorney General however argued that there is a right of property, but the right of an executor or administrator to possession of the deceased's body is limited to fulfilling the duty to ensure prompt and decent burial or cremation.   [Court Orders]The Court made the order that Ms Jocelyn Edwards is entitled to possession of the sperm recovered from the body of her late husband, Mr Mark Edwards.      


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10: Ye v Fung (No 3) [2006] NSWSC 635 | June 26, 2006

Court or Tribunal: Supreme Court of NSW
Catchwords: Domestic relationship, Estate Planning, Failure of testatrix to make provision, Family Provision, Requirement of Adequate Maintenance, Succession
Judges:  Gzell J


Background: This case considered the issue of family provisions and whether or not a young student who was living in a domestic relationship with an elderly woman was entitled to claim against the estate. Michael Ye, the plaintiff, came to Australia from China to study. Frances Lan Fong Fung (the deceased) was separated from her husband, and invited Mr Ye to move into her unit where he lived in a non-sexual relationship with her. She was 37 years his senior. Frances Lan Fong Fung died on 21 June 2001. In her Will, Frances Lan Fong Fung made no provision for Mr Ye. Mr Ye made a claim against the estate, claiming that he was entitled to a certain sum because he had formed a domestic relationship with the deceased. 
 
  [Legal Issue]Richard Neil, a solicitor and member of NSW Law Society's elder law and succession committee, said the judge was carrying out changes made by State Parliament in 1999 to the Property (Relationships) Act, which introduced the definition of domestic relationships. He said while the case of the boarder was one that "doesn't arise terribly frequently", it was a warning to elderly people who shared their home and were "getting in-kind domestic help that they can't afford". He said while a paying boarder would not normally have a claim, if the elderly person had concealed those payments in order to continue their pension entitlement, the estate was vulnerable. And if someone took in a friend who was down on their luck, and died while the person was living rent-free with them, their estates   [Court Orders]Boarder Michael Ye was awarded $425,000, and forgiven a $22,000 debt he owed Frances Lan Fong Fung, who had taken the Chinese student into her home in 1990. Until Ms Fung's death in 2001, Mr Ye lived in the second bedroom and paid no board.     


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