Supreme Court of NSW
Court or Tribunal: Supreme Court of NSW
Catchwords: Succession, Wills
Judges: Lindsay J
Background: A dying woman sat in her kitchen, delivering "motherly exhortations" and her last will and testament to a video camera. The 85-year-old widow glanced across the room at one of her daughters, who stood to inherit a larger share of the estate if the "video will" could alter a written will signed just two days earlier. It is a scenario that might ring alarm bells, and which raises questions about whether a will that is not in writing and witnessed by at least two people is legally valid.
[Legal Issue]Justice Linsday said the woman made a "series of short, and apparently well-considered, disciplined statements of intent (coupled with motherly exhortations in passing) that stand neatly with the will as an alteration of the primary document".
He ruled that, in light of the evidence and the absence of any objection from the other siblings, there was "no room for doubt" the will was voluntarily made. He admitted the video as an informal will.
But Justice Lindsay sounded a note of caution to others considering delivering a will to camera. The costs of the case and the substantial delay in processing the probate application - Ms Chan died in June 2012 - were the result of legal uncertainty about validity of a video will.
[Court Orders]Orders for a video will to be admitted to probate pursuant to the Succession Act 2006 NSW, section 8. 2. Declaration, pursuant to section 10(3)(c) of the Act, that the testatrix knew and approved of, and freely and voluntarily made, a disposition in favour of a person who witnessed and assisted the making of the video-will.
Catchwords: Succession, Wills
Judges: Lindsay J
Background: A dying woman sat in her kitchen, delivering "motherly exhortations" and her last will and testament to a video camera. The 85-year-old widow glanced across the room at one of her daughters, who stood to inherit a larger share of the estate if the "video will" could alter a written will signed just two days earlier. It is a scenario that might ring alarm bells, and which raises questions about whether a will that is not in writing and witnessed by at least two people is legally valid.
[Legal Issue]Justice Linsday said the woman made a "series of short, and apparently well-considered, disciplined statements of intent (coupled with motherly exhortations in passing) that stand neatly with the will as an alteration of the primary document".
He ruled that, in light of the evidence and the absence of any objection from the other siblings, there was "no room for doubt" the will was voluntarily made. He admitted the video as an informal will.
But Justice Lindsay sounded a note of caution to others considering delivering a will to camera. The costs of the case and the substantial delay in processing the probate application - Ms Chan died in June 2012 - were the result of legal uncertainty about validity of a video will.
[Court Orders]Orders for a video will to be admitted to probate pursuant to the Succession Act 2006 NSW, section 8. 2. Declaration, pursuant to section 10(3)(c) of the Act, that the testatrix knew and approved of, and freely and voluntarily made, a disposition in favour of a person who witnessed and assisted the making of the video-will.
Court or Tribunal: Supreme Court of NSW
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Breach of Duty, Contract, Lawyer Complaints, Pre-Nuptial Agreement, Professional Negligence, Property
Judges: Johnson J
Background:
[Legal Issue]
[Court Orders]Father of two to be awarded up to $800,000 in damages from his lawyers for professional negligence in preparing a defective binding financial agreement (pre-nuptial agreement).
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Breach of Duty, Contract, Lawyer Complaints, Pre-Nuptial Agreement, Professional Negligence, Property
Judges: Johnson J
Background:
[Legal Issue]
[Court Orders]Father of two to be awarded up to $800,000 in damages from his lawyers for professional negligence in preparing a defective binding financial agreement (pre-nuptial agreement).
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.
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.
Court or Tribunal: Supreme Court of NSW
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Contract, Divorce, Dowry, Pre-Nuptial Agreement, Property, Sharia Law
Judges: Harrison AsJ
Background: The plaintiff and defendant had been married under Islamic law but not under Australian Law. A pre-marital contract signed by both contained a clause whereby the plaintiff was to pay defendant $50,000 in the event that the plaintiff initiated "separation and/or divorce". The Magistrate found that the contract was enforceable. This Local Court decision was appealed to the Supreme Court.
[Legal Issue]This decision from the Local Court was appealed to the Supreme Court to determine whether there was an error of law, a jurisdictional error, and whether the pre-marital contract against public policy.
[Court Orders]The appeal against the original decision of the Local Court, which found that the contract was enforceable, was dismissed.
Catchwords: Binding Financial Agreement, Binding Financial Agreement, Contract, Divorce, Dowry, Pre-Nuptial Agreement, Property, Sharia Law
Judges: Harrison AsJ
Background: The plaintiff and defendant had been married under Islamic law but not under Australian Law. A pre-marital contract signed by both contained a clause whereby the plaintiff was to pay defendant $50,000 in the event that the plaintiff initiated "separation and/or divorce". The Magistrate found that the contract was enforceable. This Local Court decision was appealed to the Supreme Court.
[Legal Issue]This decision from the Local Court was appealed to the Supreme Court to determine whether there was an error of law, a jurisdictional error, and whether the pre-marital contract against public policy.
[Court Orders]The appeal against the original decision of the Local Court, which found that the contract was enforceable, was dismissed.
5: Director-General and Dept of Family & Community Services v GKD [2012] NSWSC 14 | January 16, 2012
Court or Tribunal: Supreme Court of NSW
Catchwords: Adoption, Adoption Order, Change of Name, Children
Judges: Brereton J
Background:
[Legal Issue]
[Court Orders]
Catchwords: Adoption, Adoption Order, Change of Name, Children
Judges: Brereton J
Background:
[Legal Issue]
[Court Orders]
Court or Tribunal: Supreme Court of NSW
Catchwords: Parens Patriae
Judges: McCallum J
Background:
[Legal Issue]
[Court Orders]
Catchwords: Parens Patriae
Judges: McCallum J
Background:
[Legal Issue]
[Court Orders]
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.
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.
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.
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.
Court or Tribunal: Supreme Court of NSW
Catchwords: De Facto Relationship, De Facto Relationships, Domestic Partner Declaration, Domestic relationship, Estate Planning, Failure of testatrix to make provision, Family Provision, Intestate, Substantial Relationship, Succession, Succession, Wills
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 (but not divorced) 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 in a non-sexual de facto relationship with the deceased.
[Legal Issue]It was submitted that de facto is to be contrasted with de jure and the relationship determined by reference to the facts rather than a relationship between parties recognised at law. But that approach fails to give due regard to the requirement that the individuals in question live together as a couple.
It was submitted that the word “couple” was one of wide import and required only that there be two unmarried adults. But the definition specifically requires two adult persons who are not married or related by family. To construe the word “couple” in that general sense, adds nothing further to the definition and renders the Property (Relationships) Act 1984, s 4(1)(a) otiose.
It was submitted that the difference in age of 37 years was not, of itself, significant. The parties
[Court Orders]The Court found that Mr Ye was not the de facto spouse of the deceased within the meaning of the Wills, Probate and Administration Act 1898, s 32G. As such, the plaintiff, Mr Ye, could not claim any relief against her estate on this basis.
However, in separate but related proceedings, the plaintiff also claimed to be in a domestic relationship to the deceased, having considered her to be his "honorary auntie".
These related proceedings were held subsequently to this hearing, and would be
Catchwords: De Facto Relationship, De Facto Relationships, Domestic Partner Declaration, Domestic relationship, Estate Planning, Failure of testatrix to make provision, Family Provision, Intestate, Substantial Relationship, Succession, Succession, Wills
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 (but not divorced) 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 in a non-sexual de facto relationship with the deceased.
[Legal Issue]It was submitted that de facto is to be contrasted with de jure and the relationship determined by reference to the facts rather than a relationship between parties recognised at law. But that approach fails to give due regard to the requirement that the individuals in question live together as a couple.
It was submitted that the word “couple” was one of wide import and required only that there be two unmarried adults. But the definition specifically requires two adult persons who are not married or related by family. To construe the word “couple” in that general sense, adds nothing further to the definition and renders the Property (Relationships) Act 1984, s 4(1)(a) otiose.
It was submitted that the difference in age of 37 years was not, of itself, significant. The parties
[Court Orders]The Court found that Mr Ye was not the de facto spouse of the deceased within the meaning of the Wills, Probate and Administration Act 1898, s 32G. As such, the plaintiff, Mr Ye, could not claim any relief against her estate on this basis.
However, in separate but related proceedings, the plaintiff also claimed to be in a domestic relationship to the deceased, having considered her to be his "honorary auntie".
These related proceedings were held subsequently to this hearing, and would be