Just in Case Law: Recent Episodes
Tanya Chapman
Hear about some of the most interesting Australian legal cases, including deceased estates, forged Wills, financial abuse, divorce and family law disputes, professional and medical negligence, and any other case that has enough drama to be worth discussing. I'm a solicitor specialising in Wills, Estates & Elder Law, so I kinda know what I'm talking about and will try to make it all make sense. This podcast is absolutely not legal advice or a dull legal lecture, but is more a legal soap opera! If you love true crime, but need a break from all the murder, this is the podcast for you!
What is a de facto relationship? And can you be in a de facto relationship without even knowing?
CASE: PY v CY [2005] QCA 247
In 1997, PY and her son were living with CY in his house as a family unit. PY moved to the Sunshine Coast to look after her elderly parents, but CY planned to join her there as soon as he had sold his business.
The relationship eventually broke down and PY applied for a property settlement.
CY argued that there could be no family law property settlement because there had never been a de facto relationship.
CASE: Vaughan v Hoskovich [2010] NSWSC 706
Steven Hoskovich died on 17 November 2007. He was not married, had no children and did not leave a Will.His estate was worth $413,000.
Janet Vaughan claimed that she was Steven’s de facto spouse and was therefore entitled to the estate on intestacy.
Pauline Hoskovich was Steven’s mother. She claimed that there was no de facto relationship and if there was not, she would be entitled to the whole estate on intestacy.
Throughout their 14-year relationship, Steven and Janet maintained separate houses. Steven had even stated that he was not living with Janet because he did not want her to have the legal rights that a de facto partner would have.
Regina v Phillip Raymond Parkes [2006] NSWSC 331
WARNING: Disturbing content
In 2005, Grace Parkes was 84 years old and required full-time care. Of her three children, it was decided that her son Phillip would quit his job to care for her.
Only Phillip didn't want to become a full-time carer.
On the day before he was expected to resign from his job, Grace was murdered in her home.
Phillip very quickly became the prime suspect and confessed to killing his mother.
Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727
Maxwell Charles James Irvine passed away on 3 May 2021.
His last Will allowed his de facto partner of 35 years (Dawn) to reside in the family home for the rest of her life. He left the residue of his estate to his sons Peter and Michael.
He left nothing to his 3 stepdaughters (Cynthia, Karen and Glennis). Maxwell had been estranged from his stepdaughters for over 20 years, since they accused him of sexual abuse.
Following a criminal trial, Maxwell was acquitted of all counts.
The stepdaughters made an application for provision from Maxwell's estate. The sexual abuse allegations were a relevant factor in determining their claim.
CASE: Irvine v Irvine [2008] NSWSC 592
In the middle of his ongoing legal battle with his sister Elizabeth over their late father's estate, Maxwell Irvine took some time to reconnect with his aunt Rosa.
Rosa was a 90 year old widow living alone in Orange and her only real asset of value was her house.
Within a year, Maxwell had convinced his aunt that Elizabeth had abandoned her and that Rosa needed to appoint him as her attorney and to leave her house to him and his two sons in her Will.
But you know, on second thought, Max decided why wait? He took Rosa to his solicitor to sign over her house to him and his two sons immediately.
Not long after the transfer was registered, Rosa realised what she had done and started legal proceedings to get her house back.
CASE: Dowling v Irvine [2005] NSWSC 531
When Verdun Irvine died in 1992, he left behind a large farming property in Toogong NSW known as Lowery.
Verdun's wife Enid was granted the right to live on the farm for the rest of her life. She did so, with her son Maxwell, and they continued the farming operations together.
When Enid died in 2002, the farm was supposed to be sold and the proceeds divided between Verdun's three children Maxwell, Elizabeth and Robert.
But that couldn't happen because Maxwell was refusing to leave the farm.
CASE: Irvine v Dowling [2021] NSWSC 119
Almost 30 years after Verdun's death and his children were still in dispute over the farm. Each of them wanted to keep the farm and buy it from their siblings.
They finally executed a written agreement in 2016 that the child who made the highest bid in writing could buy the farm. That was Elizabeth.
However, Maxwell argued that they had verbally agreed to change the written agreement and that Elizabeth had abandoned her bid.
In considering the sad and contentious circumstances of this decade long family feud, Justice Kunc formed the impression that Maxwell Irvine's approach was to reflexively oppose whatever Elizabeth proposed just to delay any sale.
Maxwell had continued to occupy and have full use of the farm since their father's death in 1992.
CASE: Anaya & Anaya [2019] FCCA 1048
After 46 years of marriage, Mr & Mrs Anaya decided to call it quits. They divorced when they were both in their 80s.
What caused the separation may be considered to be a simple financial transaction or the straw that broke the camel's back.
There was a lot to consider when deciding how to divide the matrimonial assets, including:
- Whether to include a significant inheritance the wife had received earlier in the relationship;
- What weight to give to the husband's financial support to the wife's three children;
- How to treat significant financial losses when the wife was scammed TWICE post-separation; and
- What would be an appropriate settlement after the husband died in the middle of the proceedings.
It as a sad and acrimonious end to a lengthy relationship and serves as an example of the careful balancing act required of the Family Law Courts.
CASE: McFarlane v McFarlane [2021] VSC 197
In 2015, Judith McFarlane signed over her house to her son Mark McFarlane in exchange for "natural love and affection".
The very next year, Judith moved into aged care and had no money to pay for her nursing home accommodation or care fees.
Transferring the house to Mark not only took away her main asset, but also caused her to lose her pension.
In 2018, the State Trustees acting for Judith took Mark to Court to try to get her house back. Not only that, but they also wanted compensation for the lost pension.
CASE: Estate El Chami; Habib v El Chami [2016] NSWSC 1208
For most of Elias El Chami's life he suffered from paranoid schizophrenia and was institutionalised several times.
His brother Salim had supported him for much of his life, but in the last 10 years they had no contact due to Elias' irrational behaviour.
When Elias was 92 years old he made his final Will leaving his entire estate to his friend Mr Habib. He had only known Habib for several months, but Elias stated he did not want to leave anything to his brother Salim, who he referred to as a 'scorpion'.
The question for the Court was whether Elias had capacity when he made his Will.
CASE: The State of Tasmania v Jassy Anglin and Michael Anglin (13 April 2015); Janet Lois Mackozdi (2018) TASCD 274
WARNING: Disturbing content
In the middle of winter, on 23 July 2010, Janet Lois Mackozdi was left to spend the night in an uninsulated shipping container. At the time, she was 77 years old and weighed only 40kg, she was frail and could not walk, she had dementia and had diminished mental capacity, she had flu like symptoms and was hallucinating. Overnight,the temperature in the shipping container dropped below minus 1 degree Celsius.
Janet did not survive the night.
At the time, Janet was in the care of her daughter Jassy Anglin and her son-in-law Michael Anglin. It was the Anglins who had decided that Janet would spend the night in the shipping container and were later charged with her death.
CASE: Estate of Shirley Gardner Bernengo v Leaney [2019] NSWSC 1324
Shirley Gardner Benengo died on 19 June 2017 without a Will, leaving an estate worth more than $3.5 million and a legal battle to see who would claim it.
There was no doubt that the person who had been closest to her was Juan Jose Bernengo, also known as Marco.
Marco had been Shirley's son-in-law for almost 20 years, up until the death of her daughter (his wife) Gaye-Marie in 2007.
But the question was - had Marco been Shirley's de facto partner at the time of her death?
Marco claimed that he and Shirley had grown close during Gaye-Marie's almost three year battle with brain cancer. After her death, they consoled each other and eventually started a relationship of their own. A relationship that continued until Shirley's death in 2017.
Shirley's nieces and nephews denied that Marco and Shirley had ever been in a de facto relationship. If they could disprove the relationship, then they would be in line to inherit Shirley's $3.5 million estate.
WARNING: Disturbing content; discussion of suicide.
CASE: Re Estate of Carrigan [2018] QSC 206
In 2017 a husband died from a self-inflicted gunshot wound. Just before his death, he had left a voice message on his friend's phone stating that he wanted his life insurance to be paid to his children ($3 million each) and the rest of his estate to his wife.
He then made a voice recording on a mini tape recorder stating the same thing.
Did either voice recording qualify to be an informal Will? Only one of them did. But why?
CASE: Re Estate of Wai Fun Chan [2015] NSWSC 1107
A video Will may seem like a great idea! So much more personal than a legal document full of undecipherable jargon and paragraphs that run on for pages.
But the legal hassle it creates!
Wai Fun Chan had made a written Will but only a few days later decided to update her Will via video recording.
First hassle was making the video into a more easily accessible format - a written document. A transcription had to be created and verified.
Second hassle was determining whether the video qualified as an informal Will. Could the video be legally upheld even though it didn't fulfil the requirements for a valid Will?
Third hassle was the involvement of a beneficiary in the creation of the video. Wai Fun left a larger share of her estate to her daughter Deborah in the video, and Deborah was also behind the camera making the video. Did the gift to her fail because she was a witness to the "Will"?
CASE: The Public Trustee of Queensland v The Public Trustee of Queensland & Ors [2014] QSC 47
WARNING: Disturbing content of suicide and death.
Francis Ward, who went by the name Frank, died in June 2009 as a result of a drug overdose. He left an estate worth about $140,000.
Two years before his death, Frank had made a homemade Will which appointed his friend Merin Nielsen as his executor and left his estate to Merin.
In 2012, Merin was convicted of having assisted Frank to commit suicide. It was Merin who travelled to Mexico to procure the drugs that resulted in Frank's death.
Merin sought leniency on the basis that Frank had a number of serious medical conditions and had an intense fear of becoming disabled.
Two significant questions for the Court were:
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Was Frank's medical condition terminal or debilitating?
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Were Merin's actions influenced by the inheritance he would receive on Frank's death?
CASE: Gill v Garrett [2020] NSWSC 795; Gill v Garrett (No 2) [2020] NSWSC 1473
Dr Bill Garrett was a brilliant medical scientist, who in the 1960s was one of the small team of Australians who developed ultrasound for monitoring pregnancies.
In 1996 an unlikely friendship formed between the good doctor and a man 30 years his junior, Jason Gill. They met at a pub in Paddington where Jason was the life of the party. He invited Dr Garrett to join his trivia team and they would frequently meet at the Pub to eat and drink, with the doctor footing the bill.
When Jason's lease expired in 2003, he moved with Dr Garrett. It was supposed to be a temporary arrangement but Jason eventually became Dr Garrett's carer.
However, the care Jason provided the ailing doctor was substandard at best and included drinking binges and episodes of night-wandering.
When Dr Garret died in November 2015, his children politely asked Jason to leave the house. He refused, claiming that the doctor had promised to give him his $2 million house.
Jason also made an application seeking provision from Dr Garrett's estate.
What happens when there are co-owners to land, one owner wants to sell and the other doesn't?
A co-owner can apply for an order under section 66G of the Conveyancing Act 1919 (NSW) in which trustees are appointed to take charge of the property and sell it.
In this episode we look at some examples.
Van Oosterum v Van Oosterum [2011] NSWSC 663
Farming property owned 50% by Edward and 50% by his son Glenn, daughter Leonie and son-in-law Matthew.
After a family breakdown the children want to sell the property and Edward does not.
Shah v Sanjiv [2014] NSWSC 1535
Shah and Sanjiv were husband and wife who had separated and going through family law proceedings.
But the family law proceedings were taking too long for the husband who wanted to sell the matrimonial home while the market was still high.
Malouf & Cameron [2024] QSC 3
Mrs. Cameron owned 50% of a 100 acre shorefront property at Noosa North Shores. When she failed to sell her share to Ms Middleton and Mr Malouf, they bought out her co-owners and made an application to force Mrs. Cameron to sell.
& more...
CASE: Alan John Hyland as executor of the estate of the late John Walter Popham Luscombe v Healy [2013] NSWSC 1513
Herbert Walter Luscombe died in January 2009 at the age of 98. He left an estate worth $3.4 million that he had intended to leave to his closest relative, his nephew John Luscombe.
It was a surprise to everyone when Laura Healy came forward to claim that she and Herbert had been friends for 17 years and had been lovers.
She even had Herbert's last Will signed by him on 28 October 2006, in which he left his entire estate to Laura.
There was something fishy about this Will though. It wasn't made with his usual solicitor. It was supposedly signed in the lobby of a club in front of two strangers. It also wasn't Herbert's normal signature on the documents.
Was it a forgery? Had Herbert even known Laura?
CASE: Able Australia Services v Yammas [2010] VSC 237
Beryl Rose Simmons (‘the deceased’) died on 19 February 2007. She was 96 years old. About a year earlier, on 23 March 2006, she had signed her last Will.
The last Will made some gifts to her nephew David, three grand-nieces and two charities. It left the residue of her estate (worth about $400,000) to her friend John Yammas.
David was suspicious about the Will. Able Australia Services (formerly the Deafblind Association) had been the primary beneficiary under Beryl's 2004. What had changed to cause Beryl to leave nothing to the charity and most of her estate to her friend?
The last Will was made in suspicious circumstances, including that John Yammas had helped to draft the Will and that the Will was signed at a chemist on the same day Beryl was discharged from hospital and moved into residential aged care.
Did Beryl know what she was doing when she made her last Will?
CASE: Adams v R [2019] NSWCCA 295
Edna Pearson was 77 years old and suffering from vascular dementia when she met 34-year-old Victoria Adams.
Victoria quickly became Edna's cleaner. She and her family inserted themselves into Edna’s life, providing assistance until Edna was completely dependent upon them.
But theirs was not a fortuitous and altruistic friendship. Victoria had identified Edna as elderly, incapacitated person of significant means. She established and maintained a relationship with Edna for the sole purpose of gaining a financial benefit.
The plan might have been successful too, had Victoria not taken it too far by forging Edna’s Will. An action which led her facing criminal charges and a prison sentence.
Frank v Angell [2024] NSWSC 158
Max Frederick Willis had a keen interest in the development of the Solomon Islands and in providing opportunities for people from the Solomon Islands to come to Australia to obtain tertiary qualifications.
From 2015 until his death in 2021, Sharon Frank and her family lived in Max's house while she studied a Bachelor of Arts and a Masters of Arts at Western Sydney University.
As well as free accommodation, Max loaned Sharon and her family significant funds to help them get by.
Max died on 18 August 2021.
His Will left Sharon $50,000 and rent free accommodation for a year, which would allow Sharon to finish her Masters degree and begin work as a teacher.
However, Sharon never completed her Masters degree. She and her husband Kim Hagie made an application seeking further provision from Max's estate.
Willmott v McCourt [2002] WASC 210
Cecil Ray French died at Murray District Hospital in Pinjarra on 5 August 1999. He was 87 years old.
During the 3 days he was in hospital with a chest infection, he was confused and falling in and out of consciousness. In one of his barely conscious moments, a friend who was visiting him helped him lift his arm and directed his hand to sign his last Will.
After Cecil's death, the first question for everyone was "Did Cecil know what he was signing?"
Law Society of New South Wales v Hocking [2017] NSWCATOD 19
From July 2009 to January 2014, Bruce Percy Hocking was working as a solicitor. He was also the director of DC Legal Pty Ltd.
During that time, the firm mishandled trust money, used client money to pay the firm's bills, charged excessive fees, and misappropriated client money.
In March 2014, the NSW applied to have Hocking removed from the Roll of Local Lawyers for professional misconduct and for misleading the Law Society investigator.
Hocking argued that he wasn't involved in the relevant client matters and that he wasn't responsible for the managing the trust accounts, despite being the director of the firm throughout the relevant time period.
Lee v R [2022] NSWDC 178
For 8 months in 2021 Zhin Zin Lee was practicing medicine when she was not qualified to do so.
She had failed her final university subjects, but still accepted an intern position with Bankstown-Lidcombe Hospital.
Her deception was eventually discovered and Zhin Zin Lee was charged with the offence of not being registered as a health practitioner while claiming to be qualified to practice.
Carr v Homersham [2018] NSWCA 65
The case of Banks v Goodfellow (1870) LR 5 QB 547set the golden standard for assessing testamentary capacity - the capacity to execute a Will.
Very briefly, the test is:
-
Does the testator understand the act and the effects of making a Will?
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Does the testator understand the extent of the property of which they are disposing?
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Does the testator comprehend and appreciate their moral duties?
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Is the testator affected by a disorder of the mind or insane delusion?
The case of Carr v Homersham focused on the fourth requirement, when it was argued that the testator Beryl Hordern was suffering from insane delusions at the time she made her 2004 Will.
In 2001, Beryl had made a Will leaving everything to her niece Ann Richardson.
In 2004, Beryl made a new Will leaving nothing to her niece and her whole estate to her friend and cleaner Cynthia Carr.
The reason for cutting off her niece? Beryl wasn't happy with something that Ann had said. Ann claimed that she never said the offensive words and that Beryl was suffering from delusions.
DPP v O'Neill [2015] VSC 25; DPP v O'Neill [2015] VSCA 325
WARNING: Disturbing content
In 2013, Michael Anthony O'Neill pleaded guilty to murdering his partner of 16 years, Stuart Rattle.
The relationship was marked with disputes and a power imbalance to culminated in the tragic events of 4 December 2013 in which Michael hit Stuart over the head with a frying pan and strangled him with a dog lead.
He left the corpse in their shared unit for a few days, before setting the unit on fire.
A key question of the case was motive. Did Michael kill his partner to hide the financial distress he caused for both them and their business? Or did Michael simply snap after one argument, and one insult too many?
Re Rattle [2018] VSC 249
In the last episode, we looked at the trial of Michael O'Neill who pleaded guilty to murdering his partner Stuart Rattle in 2013.
In this episode, we look at the complex legal proceedings that followed to determine who would inherit Stuart's $1million estate.
The proceedings involved:
- an informal Will the left Stuart's estate to the partner who killed him, Michael,
- the application of the forfeiture rule to ensure that Michael didn't benefit from his crime, and
- a surprise family provision claim from a person Stuart had never met in his life.
Downie v Langham [2017] NSWSC 113
Just a short episode on an attorney called to account for their suspicious transactions.
Dianne Langham was the attorney for her aunt Gwen.
After Gwen's death, her son Rodney noticed suspicious transactions on her bank account. On investigation, he came to believe that Dianne had misappropriated $120,000 of her aunt Gwen's money.
Estate El Chami; Habib v El Chami [2016] NSWSC 1208
Elias Yacoub El Chami died on 23 February 2014, at the age of 92 years. He left an estate with a value of about $917,000.
Elias had made two Wills during his lifetime.
His first Will made in 1992 left his entire estate to his brother Salim.
His second and final Will made in 2014 left his entire estate to his neighbour Habib. This Will was made only 10 days before Elias' death.
Salim challenged the 2014 Will and was successful. The Court found that Elias had lacked testamentary capacity at the time it was made.
Comcare v PVYW [2013] HCA 41
Are you entitled to compensation if you are injured on a work trip?
Are you entitled to compensation if the injury occurs in your hotel room after the work is done for the day?
Are you entitled to compensation if you are injured while having sex in the hotel room?
Those are the questions that were answered in the case we are covering this episode.
Pilkvist & Coburn (Deceased) [2019] FamCA 635
There are two interesting parts to this matter.
In the first part, covered in our previous episode, we looked at the family law application in which Ms Pilkvist claimed to have been in a de facto relationship with Mr Coburn for 5 years.
She was seeking a property division that would see her receive a 35% share of Mr Coburn's $11million estate.
Her application was unsuccessful and it was determined that she had only been his paid carer during that time.
But her application was doomed to fail from the start, which raised claims of professional negligence against Pilkvist's legal team.
This second part looks at the solicitor and barrister who represented Pilkvist in her unsuccessful claim. The solicitor Ms Beamish and the barrister Ms Farens were ordered to personally pay the legal costs of the successful party. They appealed that decision, arguing that they had only acted on the information provided by their client.
Pilkvist & Coburn (Deceased) [2019] FamCA 635
There are two interesting parts to this matter.
First, there is the family law application from a supposed de facto partner, seeking a division of property.
Second, there is a criticism and reprimand of the solicitor and barrister who represented the applicant.
In this episode, we look at the family law application in which Ms Pilkvist claimed to have been in a de facto relationship with Mr Coburn for 5 years up until they were separated against their wills when Mr Coburn's guardian moved him into a nursing home.
She was seeking a property division that would see her receive a 35% share of Mr Coburn's $11million estate.
Her application was opposed on behalf of Mr Coburn, on the basis that they had never been in a relationship and that Ms Pilkvist had only been his paid carer.
Di Cecco v Contini [2004] VSC 211
Armando Contini died in 2002 leaving three adult children. His daughter Giuliana and his two sons Fulvio and Mario.
In the last 10 or so years of his life, there was a severe breakdown in Armando’s relationship with his two sons – involving two significant disputes and loss of contact.
In contrast, during that time Giuliana had stepped up to provide more care and companionship to her father.
This resulted in Armando executing his final Will to leave most of his estate to Giuliana and make minimal provisions for his sons.
After his death, the sons contested the estate claiming that their father did not have capacity at the time he made his last Will.
Armanda had anticipated that his sons would challenge his estate and he took steps to thwart them.
WARNING: This episode involves disturbing details of animal neglect and the death of animals.
Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308
In 2009 the Veterinary Practitioners Board of NSW accused veterinarian Dr. Terrence Johnson of professional misconduct in his treatment of a cat that was left in his care, as well as his handling of animal remains.
While Dr. Johnson's conduct was being investigated, the Board imposed practicing conditions upon him which he did not comply with.
At the same time, there were serious questions about Dr. Johnson's ability to run a veterinary practice given that three separate medical and pharmaceutical suppliers refused to do business with him due to non payment of his accounts.
Special thanks to voice actors Shay Riley-Lewis and Nichole Maude.
Alexander v Jansson; Jansson v Alexander [2009] NSWSC 1000
The death of his father and some family transfers resulted in Eric Martin Jansson owning the 2/3rds family home and farm with his mother who owned the remaining 1/3rd.
Eric and his mother Ellen lived together in the homestead for about 42 years as they ran a farming business together.
Eric died unexpectedly in 2005 at the age of 61. He died without a Will and his 2/3rd share in the family farm passed to his 4 children.
Ellen was living in the homestead and still working the farm at 93 years of age, when Eric's children decided they wanted to sell the farm and Ellen needed to go.
The grandchildren applied for a s66G order that would result in the forced sale of the property.
Ellen countered with her own family provision claim against her deceased son's estate.
In this difficult arrangement, could Ellen keep her home of 73 years?
WARNING: Violent content and harsh language.
Richards v R [2023] NSWCCA 264
Michelle Nicole Richards and her ex-husband JR were involved in hostile Family Court proceedings. Michelle was not happy with how the case was progressing and decided to take matters into her own hands by attempting to hire a hitman.
An undercover sting operation and recorded conversations in a bowling club carpark led to Michelle pleading guilty to soliciting a person to kidnap, detain and threaten to pervert the course of justice.
She was sentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years. Michelle appealed her sentence.
Nahata v Robertson [2023] NSWSC 642
The plaintiffs (Himanshu Nahata and Priyanka Jain) wanted to construct a duplex on their land. To do so, they needed to put in storm water drainage, that would have to go through their neighbour's land.
The neighbours, Russell & Stana Robertson, did not agree to grant an easement over their land. Among their reasons for refusing was that the construction works would dig up and destroy existing concrete paths, shed and retaining wall.
The plaintiffs applied to the Court for the easement. Were they successful?
Special appearance from Evie Chapman who found this case to be very boring.
There is a temptation to use the latest technology or to add a more personal touch to your final farewell to the world, by doing a video Will.
This episode we look at two cases that demonstrate why you should resist the temptation.
Re Marian Moyne Demowbray
Marian was in her hospital bed when she asked her two friends to help her film a video Will. The next day a nurse suggested that she do a written Will with a solicitor, but Marian thought it would be too expensive.
After Marian's death, there was an expensive Court hearing to determine whether the informal video Will would be recognised.
Estate of Peter Anthony Pitman [2018] WASC 237
After Peter Pitman's death, 4 video recordings were found on his computer. Peter started each recording with "This is a preamble to my last Will and testament" but each recording was not completed.
The question for the Court was did Peter intend any of these 4 short recordings to be his final Will. They also had the further challenge that the original recordings were no longer available and for those they had the audio and visual were out of sync.
Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3
Voice actors: Liam Schofield and Shay Riley-Lewis (solicitors at Baker Love Lawyers)
George Sideris had been a solicitor for more than 30 years when, in 2023, the Law Society of NSW applied for the removal of his practicing certificate.
He was accused of professional misconduct in persistently communicating directly with the opposing side (the Salvation Army) instead of going through their solicitor and also being discourteous in his communications.
Sideris argued that he couldn't have engaged in professional misconduct because he wasn't acting as a solicitor at the time he was assisting his mother-in-law in her negotiations with the Salvation Army.
What makes this case so interesting was the correspondence that had been sent by Sideris, all of which were in evidence.
Colin Olsen died at the 87 years. He was survived by his wife of 56 years, Beverley, and their three children. He also had a child from a previous relationship, Craig Olsen.
Colin's Will left his entire estate to Beverley.
Craig made an application for provision from the estate.
What makes this case particularly interesting was that Craig was a successful solicitor and the Court was critical of his self-drafted affidavits. And also the reason that Craig was seeking provision from his late father's estate - he said he needed the funds to do renovation on 2 of his wife's 5 properties.
The State of Western Australia v Mack [2012] WASC 127
WARNING: This episode involves violence and disturbing content.
In 2012, Brent Mack was found guilty of the murder of his mother Ah Bee Mack (known as Pauline). Brent was to inherit from his mother's estate however, the forfeiture rule provides that a person convicted of murder cannot inherit from the person they have killed.
Brent's brother Adrian was to inherit all of their late mother's estate. But he died before he received his inheritance and Brent was to inherit half of Adrian's estate. This would indirectly result in Brent receiving half of his late mother's estate, thereby benefiting from his crime.
That is, unless the forfeiture rule could be extended to cover indirect inheritance.
Lucas v Salman [2022] NSWSC 1301
It was a modern love story. George and Jill met in 1999 and fell in love. They each had children from previous relationships. George had two children (Paul and Joanne) and Jill had two children (Paul and Karl).
Jill died in February 2016 and her estate, including the matrimonial home, were inherited by George.
After Jill's death, George made a Will which would leave his estate equally to his two children and his two stepsons.
But only five months after Jill's death, George met Jodie on an online dating website and fell in love again. He changed his Will to make no provision for his stepsons.
After George's death, both of the stepsons applied for provision from his estate. What obligation did George have to make provision for his stepsons in his Will?
R v Gavare [2011] SASC 142
WARNING: DISTURBING CONTENT
On 3 December 2008, 83-year-old Vonne Isabelle McGlynn went missing from her home in Reynella, Adelaide.
6 days later, a woman named Angelika Gavare attended Vonne's bank and tried to withdrawn $2,000 from Vonne's account.
Investigating police discovered that Angelika had known Vonne, had approach Vonne several times seeking to become Vonne's carer. They also discovered that Angelika had began clearing out Vonne's home not long after Vonne went missing.
On 23 February 2009, police found Vonne's partial remains in the Christies Down Creek, across the road from Angelika's house.
Bar-Mordecai v Rotman [2000] NSWCA 123; Hillston v Bar-Mordecai [2003] NSWSC 89
The Bar-Mordecai saga involves a doctor (Michael Bar-Mordecai, 36 years old) who commenced a relationship with his patient (Eveline Hillston, 72 years old) and not only continued to act as her doctor, but also got her to work for free in his medical clinic.
Eveline died in 1994 and soon after started legal proceedings that would run for over a decade. Bar-Mordecai claimed that Eveline destroyed her Will and, as her de facto, her was entitled to her entire estate. The estate denied that a de facto relationship existed and wanted Bar-Mordecai to return the significant gifts he had receiving, including his share in the home and the site of his medical practice.
The relationship between Bar-Mordecai and Eveline spawned about 46 court judgements and I cover only the core issues in this three part series.
Part 1 we cover the background and the nature of the relationship between Bar-Mordecai and Eveline.
Part 2 we cover the probate proceedings, the allegations of undue influence and the family provision claim.
Part 3 we cover the application to force the sale of the home and the proceedings before the medical tribunal.
Bar-Mordecai v Rotman [2000] NSWCA 123; Hillston v Bar-Mordecai [2003] NSWSC 89
The Bar-Mordecai saga involves a doctor (Michael Bar-Mordecai, 36 years old) who commenced a relationship with his patient (Eveline Hillston, 72 years old) and not only continued to act as her doctor, but also got her to work for free in his medical clinic.
Eveline died in 1994 and soon after started legal proceedings that would run for over a decade. Bar-Mordecai claimed that Eveline destroyed her Will and, as her de facto, her was entitled to her entire estate. The estate denied that a de facto relationship existed and wanted Bar-Mordecai to return the significant gifts he had receiving, including his share in the home and the site of his medical practice.
The relationship between Bar-Mordecai and Eveline spawned about 46 court judgements and I cover only the core issues in this three part series.
Part 1 we cover the background and the nature of the relationship between Bar-Mordecai and Eveline.
Part 2 we cover the probate proceedings, the allegations of undue influence and the family provision claim.
Part 3 we cover the application to force the sale of the home and the proceedings before the medical tribunal.
Bar-Mordecai v Rotman [2000] NSWCA 123; Hillston v Bar-Mordecai [2003] NSWSC 89
The Bar-Mordecai saga involves a doctor (Michael Bar-Mordecai, 36 years old) who commenced a relationship with his patient (Eveline Hillston, 72 years old) and not only continued to act as her doctor, but also got her to work for free in his medical clinic.
Eveline died in 1994 and soon after started legal proceedings that would run for over a decade. Bar-Mordecai claimed that Eveline destroyed her Will and, as her de facto, her was entitled to her entire estate. The estate denied that a de facto relationship existed and wanted Bar-Mordecai to return the significant gifts he had receiving, including his share in the home and the site of his medical practice.
The relationship between Bar-Mordecai and Eveline spawned about 46 court judgements and I cover only the core issues in this three part series.
Part 1 we cover the background and the nature of the relationship between Bar-Mordecai and Eveline.
Part 2 we cover the probate proceedings, the allegations of undue influence and the family provision claim.
Part 3 we cover the application to force the sale of the home and the proceedings before the medical tribunal.
Case: Meena v Jacobs; Re The Estate of Catherine Nolan [2004] NSWSC 1191
Catherine Nolan may not have intended to leave 40% of her estate to charities, but the question for the Court was whether they could rectify her Will to change that outcome?
This case deals with the power of the NSW Supreme Court to rectify a will where there has been a clerical error made and how that power will not be available to correct all mistakes in Wills.
An update on the powers of rectification can be found in this article by Liam Tobin of Baker Love Lawyers.
[Birch v Birch [2020] QCA 31 (28 February 2020)
Birch v Birch [2018] QSC 289 (16 November 2018)]
Doug Birch worked on his parents farm 'Fairyland' for his whole life. In exchange for his commitment, his parents gifted him 1/3rd of the property.
After his father's death, his mother Betty gifted him another 1/3rd of the property. She also wrote a letter to her other children explaining to them that it was her wish that the farm not be sold off and that Doug be able to continue the family business.
Betty also did a new Will that gifted the final 1/3rd of the property to Doug on her death, on the proviso that he pay his siblings the value of it.
Two years after the transfer, just before she was to move into a nursing home, Betty started legal proceedings against Doug to get her 1/3rd of the property back. She was egged on by her other sons Colin, Stanley and Geoffrey.
What spurred Betty's change of mind? And did she get her share back?
Marlow v Croft [2020] NSWSC 251
Fourteen years before his death, in 2002, Thomas Marlow had done his Wills using a proforma will form. This is a form that sets out the clauses and you fill in the gaps.
The form read "I give the residue of my estate to" and Thomas had written:
"My wife Violet Marlow and to stay at the Blacktown property till she dies and the house or belongings not to be sold until the death of my wife Violet Marlow also all money in bank goes to my wife"
This clause raised a big question: Did Thomas give his wife the Blacktown property, or only the right to live in it?
His children argued that Violet only had a licence to live in the property, which ended when she went to stay with her niece.
It was up to the Court to determine what the clause in the Will meant.
Jones v Robinsons & Ors [2019] NSWSC 932
Daisy Roach handwrote her last Will in September 2013 and her lack of punctuation led to a costly legal dispute over the correct interpretation of her wishes.
One interpretation would leave about $2.2 million to her favourite nieces, Lynette and Joy.
A different interpretation would see the $2.2 million divided between all of Daisy's 18 nieces and nephews.
That's a lot of money on the line for lack of a few commas and full-stops.
The conflict-creating clause?
If the villa hasn’t already been sold it goes to Lyn if it has been sold whatever money is left after the others get their share what I have in investments ¾ three quarts of money goes to Lynette Jones the rest goes to my niece Joy Ashley.
Day v Peake [2023] QDC 178
The administration of the estate of the late Desmond Guy screeched to a grinding halt when 2 of his 7 children refused to move out of their deceased father's property.
They both made an application for further provision from his estate - Scott Day later dropped his claim.
Lloyd Day made his application late and the Court first needed to determine whether they should allow his late application. This case is a good example of what the Court will consider when an application applies out of time.
There was Lloyd's credibility as a witness (described by the Court as "unreliable"), his conduct during the legal proceedings ("unconscionable"), and the chances of his claim succeeding ("futile").
Calvin v McTier [2017] FamCAFC 125
Mr Calvin and Ms McTier married in February 2002, separated in April 2010 and divorced in August 2011.
After they separated, they did not have a formal division of assets or property settlement.
In January 2014, Mr Calvin received an inheritance from his late father's estate.
In March 2015, Ms McTier commenced proceedings in the family law courts seeking a division of the assets, including the inheritance.
Was she successful?
Issa v Owens [2023] QSC 4
Hind Issa owned 2 properties:
- 42 Barak Street Bulleen in Victoria, and
- 30 Francis Street, Mermaid Waters, Qld.
In 2018 she got the shock of her life when she found out that her properties had been mortgaged, the loan payments had defaulted, and the bank was taking her homes.
More distressing, it was her son James who she suspected forged her signatures on the loan and mortgage documents.
Was there a way for her to get her properties back?
Bell v NSW Trustee & Guardian; Estate of William Anthony Hickey [2020] NSWSC 1164
When William Hickey was 16 years old, he suffered a traumatic brain injury and was awarded compensation. He spent most of his life travelling Australian with his parents, who provided him with close supervision and care.
After the death of his parents, he would have been left alone but instead was made a member of the Kimber family and became known to them as 'Uncle Bill'.
William had made several Wills during his life. His last one left most of his estate to the Kimbers.
William died at the age of 53 years and it was brought before the court to determine whether William had capacity to make his Will.
WARNING: This case covers disturbing content in relation to end of life and may not be appropriate for all audiences.
Hunter and New England Area Health Service v A [2009] NSWSC 761
The common law recognises two relevant but in some cases conflicting interests:
- A competent adult’s right of autonomy or self–determination: the right to control his or her own body; and
- The interest of the State in protecting and preserving the lives and health of its citizens.
The case we are looking at in this episode is an example of what happens when a person refuses medical treatment, even when it may result in their own death.
Suzanne Dale Smith by her next friend the Public Trustee vMarion Kathryn Partridge as executor of the estate of Thomas Smith [2018] WASC128
The executor of a deceased estate has a pretty important and powerful position - they are tasked with holding all the assets in the estate, paying the debts, and distributing the estate to the nominated beneficiaries within a reasonable time.
But what happens when the executor doesn't do that?
This case involved the estate of Thomas Smith and his two daughters Suzanne and Marion. Marion had been appointed executor of the estate. In that capacity, she transferred a house and funds into her own name... and then did nothing.
Suzanne had to initiate legal proceedings against her sister for failure to administer the estate.
Harty v Chilton [2021] FamCA 34
What rights does a grandparent have when the parents of the grandchildren are separated or when there are questions about who the grandchildren should live with?
In this case there were 3 grandchildren between the ages of 11 and 16 years old. For too long they had been moved about, uprooted time and again, with no settled home they could rely on.
The parents had separated and there were concerns about the children's wellbeing if they were to reside with either parent.
Their grandmother - a steadfast parental figure and bulwark in their lives - applied to the Family Court for parental responsibility.
Was she eligible to apply and was she successful?
CASE: Poche v Poche [2020] NSWSC 83This case involves a deceased mother Brenda Poche and her estate worth about $2.3million.
Brenda had two children, Adam and Wayne. In her Will, she left Adam 15% of her estate and she left the rest to Wayne.
Adam made a family provision application seeking a greater share of the estate.
There was a family history of swapping houses, a family business that was taken over by Adam, and legal disputes. But what made this case stand out in the sea of family provision cases, is the legal costs Adam incurred: $627,000!
The big question for me is: was it worth it?
Hallani v Hallani [2013] NSWSC 91
A grieving widow appoints her brother-in-law to be her attorney, to authorise him to deal with the administration her late husband’s estate. Using that power, the brother-in-law transfers estate money to Lebanon into the control of his father and away from the rightful beneficiary, the widow.
Now the brother-in-law says he can’t get the money back. The widow initiates proceedings against him to hold him personally liable. Can he be liable even though he doesn't have the estate funds anymore?
Jedrzejewska v Sheedy [2023] VSC 511
An executor’s job is to administer a deceased’s person’s estate, including paying the deceased’s debts and distributing the inheritance to the beneficiaries. But what happens if the executor says he’s going to do it… but never does?
In this case, the appointed executor published an intention to deal with the estate but then delayed, delayed, delayed.
The primary beneficiary had to apply to the Victorian Supreme Court for the executor to be replaced, at significant cost and hassle to herself.
Maybe this case can be a reminder of the important role an executor plays, the serious duties imposed on an executor and what can happen if an executor goes AWOL.
This case was recommended by Mark Everingham of TPH Advisory: Smart Insolvency Solutions. Thank you to Mark and his mum for following the podcast.
On 16 April 2017, Peter Dansie took his then 67-year-old wife Helen out of her nursing home and drove her to Veale Gardens in Adelaide where there are several rock pools.
At 6.26pm he called emergency services, stating that Helen's wheelchair had fallen into a pond and she had drowned.
He was later charged with his wife's murder. The evidence in this case was largely circumstantial. Was it an accident or was it carefully planned by Peter to free himself from a wife he no longer wanted?
Small v Phillips [2019] NSWSC 222
Ready for part 2?
In the last episode we covered the initial judgment in which Anthony Small applied for a statutory Will to be made for his incapacitated grandmother, the very wealthy Millie Phillips.
The statutory Will would see him receive a large portion of his grandmother's estate on her death.
His application was denied.
In this episode we move onto the appeal. Did Anthony fare any better?
Re MP’s Statutory Will [2019] NSWSC 331
Millie Phillips was once known as the richest woman in Australia. But by 2019 she was incapacitated, and it looked like she was going to die without a Will.
Her entire estate of about $110million would go to her two children and not as she would have wanted.
What was to be done?
Her grandson applied to the Supreme Court to make a Will for her, a "Statutory Will".
Eva Joy Ambrus v Lee Ellen Buchanan [2022] NSWSC 1628
Two people own a block of land. One wants to sell, one doesn't. What's to be done? The co-owner who wants to sell can apply to the Court under section 66G of the Conveyancing Act 1919 (NSW) for trustees to be appointed who will then sell the property and divide the proceeds.
But what happens if there are 12 co-owners and the one who wants to sell only owns a 1/56th share? That is what happened with Derrilin, a large 120 hectare property located on the edge of Mount Warning National Park.
CASE: Smith v Tamworth City Council and Ors [1997] NSWSC 197
This sad case involved a dispute over a grave site and ownership/control of the deceased's remains. On one side of the dispute is the biological parents and on the adoptive parents on the other.
CASE: Brown v Brown [2022] NSWSC 1393
John was stepfather to David from the time David was 10 years old until he separated from David's mother when David was 23 years old.
They still had contact with each other, but it dwindled and by the time of John's death he had not seen or spoken to David in 15 years.
John left nothing to David in his Will and David made an application for provision.
The question was: Did John have a moral duty to provide for his former stepson?
Aniela executed a Power of Attorney in March 2004 that appointed her son and grandson.
She did a new Power of Attorney in 2006, this time appointing two grandchildren.
Only 6 months later, in September 2006 she did her final Power of Attorney appointing her daughter Barbara.
Barbara then used that Power of Attorney to take control of the family business.
The grandchildren were quick to challenge the last Power of Attorney, claiming that Aniela did not have capacity to make it and that therefore Barbara did not have any power to control the family business.
Queue a procession of witnesses, including family, friends, doctors and lawyers. Some saying Aniela did have capacity, some saying she did not. How was the Court to decide?
THIS IS NOT CASE LAW
KOI [2011] TASGAB 7
An attorney - the person you appoint to manage your finances if you ever become incapable of doing it yourself - has a lot of power. Maybe that's why they call it "Power of Attorney"...
In this case $175,000 was being held in trust for the benefit of an 81 year old man who didn't have much use for it. His son was his attorney and wanted to give the money to himself and his siblings.
The son didn't know if he was authorised to do this as the attorney. So he sought the advice of the Guardianship and Administration Board of Hobart.
THIS IS NOT LEGAL ADVICE.
Case: Bovaird V Frost [2009] NSWSC 337
Monica and Max are siblings. In 1948, their father Walter died and Max was the executor of the estate.
It was only in 2001 that Monica's son Leon discovered that Max had not given Monica her share of the estate. They reached a "gentleman's agreement" that Max would pay for his sister's accommodation and care for the rest of her life and that Max would provide a 10-year interest free loan up to $880,000 for the development and subdivision of Monica's property in Gordon. A year after that agreement was made, Max died.
Was the agreement enforceable against Max's estate?
THIS IS NOT LEGAL ADVICE.
Case: Ballam v Ferro (No 2) [2022] NSWSC 1358 10; Ballam v Ferro [2022] NSWSC 1200
One morning in 2012, Rosario Maiorana executed his final will before a priest and a professor in Sicily. He left most of his estate to his surviving daughters Carmelina and Daniela.
After Rosario’s death in June 2020, three of his grandchildren launched legal proceedings against the estate. Firstly, they claimed that the Will was executed in suspicious circumstances and that their grandfather did not have capacity to do a Will. Secondly, they applied for provision from Rosario’s estate.
SPOILER: They were completely unsuccessful. But then it became an issue of who should pay the legal costs of the proceedings.
THIS IS NOT LEGAL ADVICE.
In the Estate of Milind Bedake [2015] ACTSC 267
Generally, the laws which you must abide by, or which dictate your affairs are the laws of the place where you live, your domicile.
There is a presumption that everyone has a domicile and (generalising even further), unless you are a child, it will be the domicile of your choice.
But there are situations where a person’s location may change without it being their choice, and this case is an example of that.
Milind Bedake was living in ACT when he suffered a serious injury that left him with permanent cognitive impairment. He was moved to India where his father could take care of him.
Several years later, Milind died without a Will. The question arose, what was to happen to his estate in the ACT. What laws applied? This all depended on where his domicile was at the date of his death.
CASE: Scott v Scott [2021] NSWSC 1619; Scott v Scott [2022] NSWCA 182; Scott v Scott (No 2) [2022] NSWSC 914
Coral Scott executed a new Will two months before her unexpected death. In that Will she made a small provision for two of her children Coralynne and Clifton, but left most of her estate to her daughter Charlene.
What had Coralynne and Clifton done to lose their mother's favour? Or was it a question of what Charlene had said they did?
THIS IS NOT LEGAL ADVICE.
CASE: PGB [2014] NSWCATGD 32
Two daughters discover that their 92 year old mother has had her house sold out from under her, is on the verge of being evicted and has had her home care services cancelled due to non-payment. The person who should have been managing the mother's finances - her son and appointed attorney - was behind it all.
The first step? To remove the son's powers so that he could no longer control the mother's finances.
THIS IS NOT LEGAL ADVICE
CASE: Liu v R [2023] NSWSSA 30
How should elderly offenders be punished by the criminal justice system? Should old age result in a shorter imprisonment sentence?
Those are the questions that were considered in this case.
Zhiyun Liu was 81 years old when he assaulted his wife and attempted to kill her. He pleaded guilty to causing grevious bodily harm with intent to murder and was sentenced to a maximum penalty of 25 years and a standard non-parole period of 10 years.
He appealed against the severity of his criminal sentence arguing that the judge had failed to property consider his advanced age.
WARNING: This episode contains disturbing details of violence.
THIS IS NOT LEGAL ADVICE.
Link to Just in Case Law Facebook group: https://www.facebook.com/groups/633768175072329/
When a romantic relationship ends, the parties may need to divide their property and assets.
The Family Court has jurisdiction to make property orders where there has been a breakdown of a marriage or de facto relationship. If you are married, you show the Court the marriage certificate. But what do you need to show to prove a de facto relationship?
The case of Swinbank v Stein [2022] FedCFamC1F 682 involved one party (Mr Swinbank) claiming that he had been in a de facto relationship with the other party (Ms Stein). Ms Stein denied this.
Mr Swinbank wanted a division of assets, which he could only get if he first proved that a de facto relationship had existed.
CASE: Swinbank v Stein [2022] FedCFamC1F 682
THIS IS NOT LEGAL ADVICE.
CASE: The application of Jill May Morison; In the matter of Neil Walter Morison [2022] NSWSC 1758In 1972, Neil Walter Morison went missing at the young age of 24 years. There was no reason for his disappearance, and he was never seenor heard from again.
50 years later, in 2022, Neil’s sister Jill applied for the Supreme Court of NSW to make a presumption of death ruling and to authorise her to dealwith her brother’s $53,000 estate.
If a person disappears leaving no trace, when can they be presumed to be dead and what happens to their estate?
THIS IS NOTE LEGAL ADVICE.
In this episode we are not so much covering a criminal trial as we are covering multiple judgments made in relation to the jury that was sitting on a criminal trial. How many jury members can be dismissed from a jury panel before it is ruled to be a mistrial?
The criminal case of R v Cranston started with 15 jurors, but as the case was drawn out for many months, jurors began dropping like flies until finally... there was only 10 left.
Why were jury members discharged? For having Covid, for starting a new job, for being pregnant and for being sleepy.
Side note: The need to say jury and juror a million times really emphasises my speach impediment - apologies in advance!
CASES: R v Cranston (No 14) [2022] NSWSC 860; R v Cranston(No 15) [2022] NSWSC 977; R v Cranston (No 16) [2022] NSWSC 1166; etc
THIS IS NOT LEGAL ADVICE.
CASE: Prothonotary of the Supreme Court of NSW v Whit [2023] NSWSC 264Executors of deceased estates have various duties and obligations. Among them, the obligation to represent the estate and maintain records and estate accounts. In this case, executor Ronald Whit was ordered by the Court to provide records of the estate assets and what he had done with them. He failed to comply with those orders and for over a year did not participate in Court proceedings.
It would take a bench warrant and apprehension by a Victorian Fugitive Squad and NSW Sheriff's Officer to bring Mr Whit before the Court.
He pleaded guilty to contempt of Court Orders and was sentenced to imprisonment for one year.
This case is a reminder that 'Executor' is not just a fancy title. It is a Court appointed role that holds a person to a high standard of conduct. And there can be serious consequences for those who wilfully shirk their duties.
THIS IS NOT LEGAL ADVICE.
CASE: Decision of the Financial Planning Association of Australia, Conduct Review Commission CRC_FY-19-20_16
This case was recommended to me by the most awesome Michael Miller. Financial Planner at Capital Advisory in Canberra.
This is a matter before the Financial Planning Association (FPA) looking at the conduct of one of its members – financial planner MrsPandya.
Mrs Pandya worked as a financial planner for several years and one of her clients was in his mid-80s and living in an aged care facility. But she was not only his financial planner, she also became a close friend and provided care and support to her client.
The client noticed strange transactions on his bank statement - payments for purchases he wouldn't need and large cash withdrawals.
After some investigations, it was discovered that Mrs Pandya had accepted a 'gift' of $25,000 from the client.
In November 2019 there was a complaint made against her that she had acted in breach of the FPA’s Code of Ethics by accepting and keeping a monetarygift from an elderly client. Was she wrong to do so?
CASE: McFarland v Gertos [2018] NSWSC 1629
GUEST: Christa Chapman, Property Lawyer at Roberts Crosbie Mortensen
In 1998 Mr Gertos was visitng a client who lived on Malleny Street in Ashbury. As he was in the neighbourhood he noticed the house at number 6 appeared to be unoccupied and was falling into disrepair. When no owner could be found, he laid claim to it: he did some renovations, changed the locks and rented it out.
In 2017 Mr Gertos applied to be registered as the legal owner of the property. It was at this time that the family of the deceased owner were notified and they objected to Mr Gertos being named the owner of their family home.
In this episode, Property Lawyer Christa Chapman joined me to explain the legal concept of 'adverse possession' and how it can to be that Mr Gertos became the owner of a $1.4m house in Sydney.
THIS IS NOT LEGAL ADVICE.
CASE: In the Estate of the late Anthony Marras [2014] NSWSC 915
Anthony Marras died on 14 September 2011. He died without having ever done a Will, which meant that his estate would be distributed according to the rules of intestacy. According to those rules, the majority of his estate would go to his surviving spouse. But depending on how you looked at it, Anthony had 2 wives... or none... or just one.
Anthony was married to Maria from 1958 to 1980, at which stage they divided their assets and divorced.
Anthony was married to Effy in 1982 and they separated in 2008. They had divided their assets, but not yet divorced when Anthony died on 14 September 2011.
After Anthony's death, Maria claimed that in 2008 she and Anthony got back together and that she was his de facto at the time of his death.
So how many spouses did Anthony really have and how was his $1.5 million estate to be distributed?
THIS IS NOT LEGAL ADVICE.
CASE: LE and LF v Public Guardian [2009] NSWADT 78
WARNING: This case covers the topic of advance care planning and end-of-life treatment, and may not be suitable for all listeners.
Perhaps one of the hardest decisions to make could be whether or not to terminate life support in the knowledge that it will result in a person's death.
People will generally have an idea of whether or not THEY would like to be kept alive on life support, but how do you make the decision for another person?
Mr A was only 44 years old when he had a terrible accident while rock fishing that resulted in brain damage. He was put on life support with no expectation of recovery. His doctors recommended ceasing life support and his wife and son agreed. However, his niece and distant family members disagreed and wanted the power to make all future medical decisions for Mr A.
The matter came before the Administrative Decisions Tribunal to determine whether or not the Palliative Care Plan for Mr A was appropriate.
THIS IS NOT LEGAL ADVICE.
CASE: Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477
A de facto spouse is where you are living together as a couple but not married.
But what happens when a de facto spouse dies without a Will? and the big question that follows on from that is “how do you prove that you are a de facto spouse?”.
The case we are looking at today involves a man who dies without a Will. A woman who claims to be his de facto spouse and therefore entitled to his estate, and his mother who denies that the de facto relationship exists.
THIS IS NOT LEGAL ADVICE.
CASE: NMBA v Kumar [2019] VCAT 1099
This case involved an application by the Nursing and Midwifery Board of Australia bringing allegations of professional misconduct against Ms Abha Kumar.
Mr Lionel Cox was 92 years old when he was admitted for respite care at Cambridge house, where Ms Kumar was a nurse unit manager. On his first day there, Ms Kumar found out that Lionel did not have any family, owned a house in Fitzroy and did not have a Will.
Within a three weeks, Ms Kumar had purchased a post-office Will Kit and arranged for Lionel to sign a Will leaving his entire estate to her. Only a week later, Lionel died and Ms Kumar inherited his estate worth about $1,150,000.
The Nursing and Midwifery Board of Australia investigated and charged Ms Kumar with professional misconduct in her dealings with Lionel and the suspicious circumstances in which his Will was executed.
THIS PODCAST IS NOT LEGAL ADVICE.
CASE: Adams v Adams [2001] NSWSC 456
Can an adult child's conduct be so reprehensible as to disentitle them from provision from a deceased's parents estate?
Meryl Adams died in 1999 and was survived by her 6 children. She left her estate to only one of them, her daughter Jennifer.
When her other children applied to the court for a share of the estate, their past conduct and that of their mother became the focus of all attention.
This podcast is not legal advice
CASE: NSW Trustee and Guardian v Colin Edward James Schneider [2011] NSWSC 424
When Athol Morgan's mother died, she left him a right to reside in a property at Evans Head for the rest of his life. The house could also be sold to pay for new accommodation for Athol. Only on Athol's death would the house then go to a grand nephew Colin Schneider.
Colin got a bit impatient waiting for his inheritance so he moved in with Athol. Then Athol moved out to go into higher care. The house needed to be sold to pay for Athol's new accommodation, but Colin refused to move out. This kicked-off years of legal proceedings by the estate to get Colin out of the house that he wasn't entitled to yet.
This podcast is not legal advice.
CASE: Lim v Cho [2018] NSWCA 145
A family dinner out takes an unexpected turn. On the drive home from the restaurant, mum is driving, dad is in the front passenger seat and two kids (2 years old and 4 years old) are in the back. Mum and dad start arguing and dad decides to end the argument by leaving the vehicle... while it's still moving. He jumps out as the car is going 50km/hr. He suffers some serious injuries. He then sues his wife for not breaking.
Is the wife liable for the husband's injuries?
This podcast is not legal advice.
CASE: R v Morant [2018] QSC 251 (Davis J); Morant v Terry Ryan (The State Coroner) [2022] QDC 134 (District Court Judge Loury QC)
WARNING: This episode involves suicide and criminal charges related to counselling and aiding suicide. Obviously, this can be a difficult topic and if people would prefer to skip this episode, that is fine with me. Your mental wellbeing is much more important, take care of yourselves.
On 30 November 2014 at 9.50pm police found Jennifer Morant dead in her car, parked in a street about 10 km from her home. The doors and the windows of the car were closed. The engine was not running. Jennifer was sitting in the drivers seat, deceased. A postage note was found next to the gear lever that said "Do not resuscitate me".
The back seat of the car was folded down. There was a Ryobi brand petrol generator in the boot of the car. It was not running and it was cold to the touch. The generator switch was in the "on" position.
An autopsy confirmed that Jennifer had died from acute carbon monoxide poisoning.
Later, her husband Graham Morant was charged with one count of counselling suicide and one count of aiding suicide.
CASE: Re Cassar [2022] VSC 126
Frank Cassar died on 14 October 2011. His last Will appointed his oldest son as his sole executor and beneficiary and made no mention of his partner of more than 30 years Sandra or their other 3 children.
In 2019, 8 years after Frank's death, Sandra admitted to the Supreme Court of Victoria that she had forged Frank's Will and brought into dispute a $15 million estate.
This podcast is not legal advice.
CASE: Kaimal & Kaimal (No 2) [2020] FamCA 1119; Kaimal & Kaimal [2020] FamCA 971 (20 Nov 2020)
A binding financial agreement allows a couple to agree in advance on how their assets will be divided should they separate.
However, to be binding, it must comply with several requirements, including the requirement that each party receive adequate independent legal advice.
In this case, the parties had a financial agreement and later separated. The wife argued that she didn't receive adequate legal advice and therefore the agreement was not binding. Was she successful?
SPECIAL GUEST APPEARANCE from my mother Jenny (playing the role of witness Mr B and my niece Evie playing the role of Chief Justice Alstergren with striking similarity).
This podcast is not legal advice.
This case is based on the law in NSW only.
CASE: EB v GB (No 2) [2022] NSWSC 1011
Does the guardian of an incapacitated adult have the authority to prevent other people having contact?
That was the question asked of the NSW Supreme Court in this case and it recognised that the answer to that question is different in the different States and Territories of Australia.
The primary issue in this case was whether the Court had jurisdiction to require a mother, against her wishes, to authorise a daughter to have personal access to her father.
The father has advanced Alzheimer’s disease and is almost entirely unable to communicate or perceive his circumstances.
Given to the sensitive nature of the issues, the parties are referred to as the father, the mother, the daughter and the two brothers.
This podcast is not legal advice.
CASE: Carpenter & Woodward [2021] FedCFamC2F 600
What if you just decide not to participate in family law legal proceedings? What happens if you just don’t turn up to your court date or submit any evidence?
Can the court make a judgement without you there? Can they make a judgement against you?
That is what happened in this family law matter in which the mother applied to the court for parenting and property Orders and the father did not file any material or participate in the matter in any way.
As a further unusual element of this case, the father had no assets himself but was in line to receive an inheritance. Could his ex-spouse get a share of the inheritance?
This podcast is not legal advice.
WARNING: Includes mentions of domestic violence and drug use.
CASE: Wang v Jiang [2022] VSC 371
TOPIC: When you die, who owns your corpse? Is it you? Your spouse? Your executor? Or the State?
And what happens if there is a dispute over what is to happen with your remains? Who decides whether you are buried or cremated? Who can keep your ashes?
That is the topic covered in this case.
This podcast is not legal advice.
This case is based on the law in Victoria only.
Application of Baldwin [2021] NSWSC 1438
Before she died, Denise Melane hired Julian Field and his company Lokdown Pty Limited to create and maintain a website directory for her, for which she paid over $400,000.
After Denise's death, her executors applied to the Supreme Court of NSW to ask whether they could sue Julian Field and his company.
Keep an ear out for the loud rumble of thunder which I couldn't edit out and which was actually the sound of two tiny French Bulldogs running about above my head upstairs.
THIS PODCAST IS NOT LEGAL ADVICE.
Eufrosin & Eufrosin [2014] FamCAFC 191; Eufrosin & Eufrosin [2013] FamCA 311
As sometimes happens, the marriage in this case came to an end and the husband and wife went their separate ways. The only thing binding them still was the ongoing legal proceedings to determine how their assets would be divided.
While they were still fighting over who got the house and the car, the wife went into a newsagent and bought herself a lottery ticket. Fortunately, or unfortunately, depending on how you look at it, she won!
But did the winnings belong to the wife? The husband argued that the ticket was purchased with matrimonial assets and that he was entitled to a share.
What do you think the Court decided?
THIS PODCAST IS NOT LEGAL ADVICE.
Manning v Matsen [2015] NSWSC 1801; Manning v Matsen (No 2) [2016] NSWSC
This case involves an adult daughter making claim for greater provision from the estate of her deceased mother and the fun mind-scramble that is notional estate.
This podcast is not legal advice.
This case is based on the law in NSW only.
CASE: Ip v Chiang [2021] NSWSC 822
This case involves a sham marriage, separation, property settlement and then a second sham marriage.
All perpetrated against a man who did not mental capacity to consent to any of it and with the intention of taking his house.
The Supreme Court of NSW needed to determine whether Lo Sing Ip had capacity to marry, transfer his property, divorce, sign a settlement agreement, sign a Power of Attorney, and marry a second time.
This podcast is not legal advice.
This case is based on the law in NSW only.