Promissory Estoppel & the Conditional Gift

Promissory estoppel is an equitable doctrine in which the promisee who relied upon a reasonable promise who has subsequently suffered loss may recover damages from the promisor

Faith Richardson was born in 1934; married at the age of 19 and had four daughters, Gloria, Vicki, Grace and Fiona.

Following the death of her ex-husband in 2010, Faith sold property she owned in South Grafton and commenced living with her daughter Fiona’s family at a rental property in Orange.

Fiona and her husband John have three children: twins born in 1999 and a daughter born in 2009.

In late 2011 Fiona and John purchased a property in Orange (”the property”) for $470,000, of which Faith contributed $220,000 pursuant to a Deed of Family Arrangement (“the Deed”).

The Deed conditionally gave $220,000 to Fiona and John to assist them to purchase the property. By the Deed, Fiona and John undertook to care for Faith, allow her to live with them and to fund her transition to an aged person’s unit or care facility when necessary.

Fiona and John subsequently sold the property purchasing a new property about 25 kilometres outside of Orange. Faith argued that this move occurred without her consent. After initially moving with Fiona and John; Faith later moved out and has not returned to live there.

Faith commenced action against Fiona and John seeking the return of $220,000, arguing it was a “conditional gift”

At first instance the Court held that not only did Faith agree to the move, she was enthusiastic about it; therefore Faith was estopped from making the claim, and was not entitled to the return of her “conditional gift”, nor to the higher amount of $345,000 to which she alleged her original contributions had grown by reason of Fiona and John’s investment in the Orange property.

On appeal Faith’s submissions were dismissed unanimously by the Supreme Court of NSW.

Downton Abbey, Brideshead Revisited & the Descendants – Succession as a Plot Device

An entail or “fee tail” operates like a will that sets up a primogeniture system for real estate. Entail restricts the sale or inheritance of an estate and prevents the property from being sold, or left by will, to anyone other than a pre-determined heir. The primogeniture system meant the eldest son inherits the title, even if he had an older sister. Daughters couldn’t inherit their father’s title even if they had no brothers, and daughters’ sons and grandsons couldn’t inherit. The title had to pass to and through legitimate sons. A feature of Pride and Prejudice is the problems that can arise through the entailing of property.

Entailing property was an attempt to maintain the high social status of a family. A lord or other landholder left his house and land to his son “and the male heirs of his body.” ensuring that a single male descendant gets all the family’s real estate. Where the family has a noble title, the entail follows the title, so the same man gets the real estate and the lordship.

The importance that ownership of an estate had, as a source of wealth and a symbol of family status isn’t easily dismissed. A landowner was essentially a trustee with a duty to preserve their land for future generations explaining the desire for property to go only to a male heir.

An estate could lose its status by two means

1) Division. If it were divided equally between all heirs over several generations, leading to numerous smaller landholdings that didn’t meet the requirements for similar social status; and

2) Dissipation. If the head of the family were impecunious and was forced to sell his land to raise funds, and then fritter away the sales proceeds, the whole family sinks into obscurity.

Primogeniture was devised to eliminate division. Entailments were devised to combat dissipation.

Pride & Prejudice

In Pride and Prejudice Mr Bennet, the father of protagonist Elizabeth Bennet had only a life interest in Longbourn, the family’s home (and principal source of income) as the property was entailed.

Mr Bennet had no power to sell Longbourn, or gift it through his will as it was strictly arranged to be inherited by the next male heir. If Mr Bennet had fathered a son it would have passed to him, but it could not pass to any of his five daughters – Mr Bennet’s cousin as the next nearest male heir would inherit the property.

Mr Bennet’s death would mean that the five Bennet daughters, would lose their home and income. In the novel, Mrs Bennet is motivated by the desire to arrange a good marriage for each of her daughters to ensure their financial security.

Jane Austen’s brother Edward, had inherited entailed estates from Thomas and Catherine Knight, distant cousins of their father under the will of Elizabeth Knight, who died in 1737. When Thomas died in 1794 he left the estate to his wife for her life, who subsequently moved away before her death and gave up the estates to Edward. Catherine Knight’s will stipulated that Edward change his legal name to Knight which he did in 1812.

Downton Abbey

Robert Earl of Grantham has a problem; he has no sons, and an “entail” keeping any of his three daughters from inheriting his great estate and mansion: Downton Abbey. In essence, The Earl has the full use of the property during his life (a life estate) and, at the end of his life, it will pass to the closest male heir.

The Earl had a good relationship with the heir, his first cousin James Crawley, and there was even an engagement between the Earl’s oldest daughter Mary and James’ son Patrick. However, the heir and his son both perished on the Titanic. So the new heir, Matthew Crawley, the Earl’s third-cousin, once removed, thanks to the entail will someday inherit the earldom, the farmland, and Downton Abbey.

The fee tail allowed a patriarch to keep his estate intact in the hands of one male heir thereby perpetuating his family-name, wealth and power through a series of male descendants. It was a form of trust whose trustees are replaced as they die allowing the trust to effectively continue indefinitely.

In England, the succession often appeared to be seamless from patriarch to patriarch, due to the baptism of the eldest son and heir with his father’s Christian name for several generations.

Brideshead Revisited

In Brideshead Revisited the entail ended with the current Lord Marchmain allowing him to leave his estate to his eldest daughter Julia bypassing his eldest son and presumptive heir. When asked if she would accept it Julia replied

‘Certainly. It’s papa’s to leave as he likes.’

In Downton Abbey catastrophe was averted when Roberts eldest daughter Mary married Matthew, who subsequently died, but not before providing a son George – a new heir to the Earldom although via his Father and not his Maternal Grandfather.

Although Fee tail was abolished in 1925, entailed estates may still exist if they were created before this date, however, no new fee tails can be created as of 1996.

In general, the Rule against perpetuities at common law provides that an interest in real or personal property is void if it vests later than 21 years after the death of everyone alive (including unborn children) at the time the gift was created.

All State and Territory jurisdictions in Australia except South Australia have retained the Rule but have modified it in different ways by statute, mostly specifying a maximum perpetuity period of 80 years.

It is more accurately described as the rule against remoteness of vesting for it is not a rule against interests that last too long but rather against interests that vest too late. As we saw yesterday if a gift in a will violates the Rule against Perpetuities, the court will simply strike that gift and transfer the subject of the gift as if the will had not mentioned it.

The Descendants

Matt is a real estate lawyer and although he is a bit uncomfortable about admitting it (and tries to live a relatively middle-class life) is one of the descendants from the union between a white settler and a native Polynesian princess in the 1840s. The family tree stretches back to the earliest white settlers in Hawaii.

As trustee for the family trust, whose principal asset is an unspoiled tract of land on Kauai, Matt is mindful that due to the rule against perpetuities the trust is expiring in seven years. He feels pressure from his cousins who want to cash out by selling the land that will make them all multimillionaires however Matt feels troubled that he might betray a 150-year-old legacy.

At the King family meeting, the majority of the cousins wish to sell the land, Matt decides against this and wants to look for a different solution to the problem posed by the rule against perpetuities. Several of the cousins tell a resolute Matt that they will take legal action if the property isn’t sold. Similarly, how will Matt prevent the land from being developed during the trusts final seven years?

If the cousins take action for breach of trust and Matt is found to have breached his trustee’s duties it would take a sizable amount in legal fees and delay any sale by the length of the case.


Executor, Joint Tenancy, Survivorship & Power of Attorney

Maud Inch made a Will leaving her estate to her three children; she appointed two of her children, Cecil and Maud junior, as her executors. Her estate included real estate at Bondi Junction known as lot 2. Maud died in 1968; Cecil and Maud junior obtained probate and transmitted lot 2 to themselves as executors, and joint tenants; later Maud made Cecil her power of attorney. In September 2008 Maud junior executed a Will, using a printed “will form”naming her friend Aurera Valverde as executor.

Joint tenants have equal ownership and interest in the property and the right of survivorship; therefore if one of the joint tenants dies, the property will automatically pass to the surviving joint tenant regardless of any contrary intentions in the will of the deceased.

In September 2009 Cecil made a will appointing his wife Joycelyn his sole executor and beneficiary.

In October 2009 Cecil and Maud exchanged contracts to sell lot 2. Five weeks later, Maud junior died, Cecil completed the sale, by signing the transfer for himself and under Maude Junior’s power of attorney. Two weeks later, Cecil died. The proceeds of the sale were paid to Jocelyn (although probate was never obtained). Aurera brought proceedings against Jocelyn as executor of Cecil’s estate to recover part of the proceeds of the sale.

A power of attorney operates until the death of its grantor; the executor of the estate handles all financial and legal matters, according to the provisions of the will following the death of the grantor. An individual can designate a power of attorney to an attorney, family member or friend and also name that same person as the executor of the estate. Maud assigned power of attorney to Cecil, who represented her in life. When Maud named Aurera as executor of her estate in her will, Aurera represents her in death.

The Court held that the expression “joint tenancy” takes on a different meaning when used in the context of several holders of the office of executor of a deceased estate; in order to enable them to perform their executorial duties, the law gives them a joint interest in all estate assets; that joint interest differs from an ordinary joint tenancy because, not only are all the executors seized of the entire interest, but so is each one; it is a joint tenancy, but of a special kind: Union Bank of Australia v Harrison, Jones & Devlin Limited(1910) 11 CLR 492 at 520-521.

Although executors might be declared to be “joint tenants”, they are also and primarily executors; and the nature of their office does not, for example, permit them to sever their joint interest and to create a tenancy in common. Unless Cecil and Maud agreed to the contrary, the respective beneficial entitlements of Cecil and Maud junior to, or in respect of, Lot 2 were to be determined by reference to the will of Maud senior. Section 26(1) of the Conveyancing Act 1919 provided that those beneficial entitlements were held as tenants in common in equal shares. `

At the time contracts for Lot 2 were exchanged in September 2009, Cecil and Maud junior were joint tenants themselves and as beneficiaries under the will of Maud senior, as tenants in common in equal shares. With the passage of time, and in the absence of evidence about ongoing administration of the estate of Maud senior, it is more probable than not that, but for the controversial question whether “assent” requires the formality of registration under the Real Property Act, they held legal title as trustees for themselves rather than as executors of Maud senior’s estate.

Subject to the registration of the notice of her death (under the Real Property Act, section 101), Maud junior’s role as an executor or trustee of Lot 2 ended. As between Cecil and Maud junior’s estate, half, at the time of her death, Maud was entitled to a half share of the property as a tenant in common in equity, that entitlement continued to subsist despite her death, enforceable by her legal personal representative, Aurera subject to a grant of representation. Maud junior upon completion of the sale of Lot 2 Bondi Junction, by the contract of sale dated November 2009, was beneficially entitled to 40% of the net proceeds of the sale.


Voluntary Assisted Dying in Victoria

It was reported earlier today that Kerry Robertson was the first person in Victoria to be granted a permit to end her life under the state’s new voluntary assisted dying laws, the 61-year-old was in a nursing home in Bendigo when she died on July 15.

In November 2017 the Victorian parliament passed the Voluntary Assisted Dying Act (‘the Act”) providing a safe legal framework to enable a patient to die. In circumstances where a person wishes to avoid the suffering that cannot be managed in a way they consider tolerable, they may request medication to control the time and location of their death.

A ministerial advisory panel on voluntary assisted dying outlined safeguards concerning eligibility and access, medication management and storage, protections for practitioners, and reporting and oversight of the Act.

Safeguards for members of the community include the required “voluntariness” for accessing voluntary assisted dying; the discussion must be initiated by the person directly and cannot be initiated by a health practitioner; importantly a person requesting voluntary assisted dying must have decision-making capacity at the time of the request. It is not possible to request voluntary assisted dying in an advance care directive.

Safeguards for health practitioners include provisions for conscientious objection; a medical practitioner can refuse to participate in any processes related to voluntary assisted dying, including providing information, assessing eligibility, and prescribing or administering drugs.

Medical practitioners participating in voluntary assisted dying must be registered as relevant to their speciality and must complete training on voluntary assisted dying. To monitor and report on the operation of the Act a Voluntary Assisted Dying Review Board has been established.

The Act prescribes a practice of “self-administration”, enabling a patient to self-administer a prescribed lethal substance without the necessity of a doctor. In the circumstance that a patient is unable to self-administer, the Act provides that a medical practitioner can administer the substance.

To be eligible to access voluntary assisted dying a person must be;

An Australian citizen or permanent resident aged 18 or older who has lived in Victoria for at least one year before requesting voluntary assisted dying, and has the legal capacity (they can understand, retain, and make a judgement and communicate their decision) concerning voluntary assisted dying, and

Diagnosed with an incurable advanced and progressive illness that is predicted to cause death within no more than 6 months (or no more than 12 months for those with a neurodegenerative diagnosis) causing suffering that cannot be relieved in a way considered tolerable by the person.

The legislation outlines a formal procedure for accessing voluntary assisted dying, with specific requirements for a person making a direct request to a doctor; followed by an initial assessment conducted by a “coordinating medical practitioner” to determine eligibility.

A second assessment will be performed by another doctor ( “consulting medical practitioner”) to confirm the person’s eligibility. Following the second assessment, the person will make a further written declaration, signed in the presence of two witnesses and the coordinating medical practitioner.

At least nine days after the first request (unless death is likely to occur before this time has elapsed) the person will make a final request to the coordinating medical practitioner; the coordinating medical practitioner will conduct a final review to certify the request and assessment process. They will then apply for a permit, either for self-administration or practitioner administration. The drug is delivered in powder form that provides a painless, relatively quick and peaceful death.

At any stage of the process, a person who has requested access to voluntary assisted dying may change their mind and decide not to proceed.


Renouncing Executor

The plaintiff (“M”) and  Andrew Moffa were appointed executors and trustees in a Will made in November 2016. M sought a grant of probate. A beneficiary of the Will lodged a caveat at the Probate Registry.

A Probate Caveat [Administration and Probate Act 1919 (SA) s 26; Supreme Court Probate Rules 2015 (SA) Rule 52(1)] temporarily prevents an executor or administrator from obtaining a grant of probate or letters of administration; allowing  the person lodging the caveat to raise concerns they may have before probate or letters of administration is granted. It could be due to concerns the testator lacked testamentary capacity, or there is a later Will that revokes the earlier Will- the caveat should not be used as a tool simply to frustrate the estate process.

A probate caveat will expire 6 months after it is lodged unless it is otherwise withdrawn, dealt with, or extended in that time [See Supreme Court Probate Rules 2015 (SA) Rule 52(4)].

In August 2018 the Court appointed M the Administrator pendente lite “administrator pending litigation” to begin probate proceedings` pending the resolution of this dispute.

M liaised with the managing agent, insured and secured the deceased’s real estate, organised the removal and sale of furniture, the payment of rates from rent, reinvested term deposits, and received rent to his trust account; no other  assets of the estate (other than the items of furniture and personal effects) were sold.

The beneficiary sought orders to pass over the 2016 Will and obtain a grant of probate for a will made in 2013. Several issues were pleaded in respect of the 2016 Will. M and his firm were involved in the preparation of the 2016 Will. In the circumstances, M has determined that he should renounce his role as the executor of the 2016 will; however M has intermeddled in the estate; usually, an executor who has intermeddled may not ordinarily renounce the executorship of the will.

The court has the power to accept a renunciation by an executor who has intermeddled in the estate after taking into account the interests of the beneficiaries and the creditors of the estate.

In this matter, the beneficiaries all consent to M renouncing is role as executor. The Court held that it would be appropriate to permit M to renounce without that consent noting that the steps taken in dealing with the estate assets were necessary and appropriate in the circumstances; were protective and for the benefit of all defendants. Importantly there have been no adverse effects caused as a result of M’s actions.

The Court believed that it is appropriate that M be permitted to renounce.


Divorce, Survivorship & the Notional Estate

Richard Squire died unexpectedly in April 2015; his second wife Corrine was named executrix in his Will made in March 2007, leaving his entire estate to her and if she did not survive him by 30 days to be divided equally between his three children and two children by Corrine’s first marriage. Three weeks before his death Richard and Corrine separated and made arrangements to divide their assets. Richard told his children that he was preparing a new Will to reflect his changed circumstances.

The principal asset of the marriage was a home unit, which Richard & Corrine held as joint tenants (joint tenants have equal ownership and interest in the property; and a right of survivorship meaning regardless of any contrary intention in the Will that if one of the joint tenants dies, the property will automatically pass to the surviving joint tenant.) The home unit was sold in March 2015 with settlement occurring shortly after Richard’s death; with Corrine entitled by survivorship to the whole of the sale proceeds.

Two of Richard’s adult children Claire and Paul made a family provision claim for $85,000 each under the Succession Act 2006 (NSW). The value of Richard’s estate was minimal (roughly $10,000 at most) but Claire and Paul asked that the proceeds from the sale of the home unit be designated as the notional estate. A deceased’s personal Actual Estate is often only one slice of the bigger “pie” of assets that the Deceased would have been entitled to enjoy if they had not died.

Notional estate orders are issued by the Court with the intention of making available for family provision orders assets that are no longer part of the estate of a deceased person because they have been distributed either before or after the deceased’s death (either with or without the intention of defeating applications for family provision).

The concept of a person’s Notional Estate becomes very significant in the area of family provision claims. If an eligible claimant for family provision (within the Succession Act 2006 (NSW)) believes they have not been adequately provided for, their claim is no longer limited to the Deceased’s Actual Estate – it also takes into account the Deceased’s Notional Estate – if the Actual Estate is insufficient to provide for the successful claimant

At first instance the Court was not satisfied that Claire and Paul had been left without adequate provision for their proper maintenance, education or advancement in life. The Court of appeal disagreed ordering the amount representing the share of the proceeds of sale of the property be designated as notional estate of Richard Squire, providing payments of $85,000 be made for each of Claire and Paul; observing however that the costs incurred by the parties in bringing the claim exceeded the value of the provision ordered.

Life Support, Medical Ethics & Capacity

A three-year-old was struck by a motor vehicle in September 2018 sustaining multiple injuries, including a traumatic brain injury, spinal cord injury and suffered a cardiorespiratory arrest along with other serious injuries.

The Court was asked to make orders regarding the discontinuation of all life-sustaining treatment and medical support, and the replacement of that treatment by palliative measures. Proceedings were commenced in April 2019; to preserve the anonymity of all concerned, the plaintiff has been given the name the Hospital, the child has been referred to as S, and his parents are to be called the Mother and the Father.

The Hospital and treating medical professionals have provided various forms of medical treatment to S since the date of his accident and reached the conclusion that S has no conscious awareness at all; it is most unlikely S will ever achieve any awareness; his injuries are terminal without artificial, mechanical life-sustaining treatment; and that all further treatment will be futile.

Furthermore, there is a medical consensus that the prolongation of S’s life is inconsistent with his dignity, and that the further continuation of the life-sustaining treatment that is being given to S would be medically unethical. However, the Mother and the Father have hoped for a miracle, so that they have remained unwilling to give their parental consent to the discontinuation of all life-sustaining treatment for S, and its replacement by palliative measures, which will quickly lead to  S’s death.

As S is a minor, the  Mother and Father are responsible for giving consent to medical procedures; they have been unwilling to give consent to the course proposed by the Hospital. The Hospital has made the application, to ensure that, if it withdraws all life-sustaining treatment for S, replacing it with palliative measures, neither the Hospital nor participating medical practitioners will be guilty of unlawful conduct in respect of the treatment of the child.

The medical consensus is that the prolongation of S’s life is inconsistent with his dignity and that the further continuation of the life-sustaining treatment that was being given to S would be medically unethical.

Fundamental to the determination of what is in the best interests of an unconscious patient is that they receive ordinary reasonable and appropriate medical treatment, sustenance and support, however, this is not equivalent to a right to the perpetuation of life irrespective of the circumstances; it may not be in the best interests of the patient to be given medical treatment that is excessively burdensome, intrusive or futile.

When a Court order is sought the Court must consider that medical treatment is proper in the circumstances and is in the patient’s best interests;  medical evidence, in this case, justified the conclusion that it was in S’s best interests that the treatment to be discontinued

 “It is reasonable also that account should be taken of the invasiveness of the treatment and of the indignity to which, as the present case shows, a person has to be subjected if his life is prolonged by artificial means…”

the dignity of a person is a real and significant factor which the Court should protect in that person’s best interests.

The Court declared the Hospital may lawfully discontinue all life-sustaining treatment and medical support measures, (including withdrawal of mechanical positive pressure ventilation) designed to keep alive in his current state; that, once this has taken place, medical services to be provided by the Hospital to the S be limited to palliative measures specifically aimed toward comfort, pain relief and relief of anxiety or torment; and the Hospital may lawfully direct a “no cardiopulmonary resuscitation order” in respect of S.

Lost Capacity & the Draft Will

There is a growing number of people who have lived for many years following a diagnosis of dementia; others who have an acquired brain injury, in these circumstances they may have no Will or a Will which is out of date.

In recent years there have been significant changes that impact management of assets which are not addressed by a Will made before the loss of capacity.  In some cases, an insurance payout following an accident  (that results in an acquired brain injury) may be distributed through an out of date Will into the injured person’s estate on their death.

Statutory Wills predominantly fall into the following categories “lost capacity” cases – where a person having made a will loses testamentary capacity; “nil capacity” cases – where a person never had testamentary capacity because of mental infirmity from a very young age;”pre-empted capacity” cases – where a person who was still a minor and therefore lacked testamentary capacity was still able to form relationships and express reasonable wishes about property before losing testamentary capacity.

A lost capacity case is one in which the incapacitated person is an adult who has lost capacity as a result of, for example, dementia or a brain injury; they are probably the easiest cases to consider.

The person in this situation is likely to have significant relationships with family and friends, may have discussed their testamentary wishes or had a Will before losing capacity. The previous, outdated will can be used by the court as a yardstick against which to consider the previous testamentary intentions of the person and the proposed will (for example, after the death of a beneficiary).

MP is 90 years old; has long been divorced from her (now deceased) husband with an estate worth an estimated  $100 million. MP had three children by her former husband; one daughter died in tragic circumstances, her son has five children and her daughter has one child.

Throughout her life, MP sought to control her children’s relationship with their father – leading to periods of estrangement. For many years she ostracized her son and his family, although she retained her relationship with her daughter it had some rocky patches. MP favoured her daughter’s son.

On 25 March 2017 MP suffered a fall after which she was admitted to hospital; 6 months later she suffered another fall and was readmitted to hospital. During this time MP had a reconciliation of sorts with her son who became involved with managing her affairs in collaboration with his sister.

In May 2017 MP appointed her daughter as her enduring guardian, after some consideration the daughter accepted the appointment in September 2017. However MP continued to make independent decisions about her financial affairs; in October 2017, she executed a deed by which she pledged to make a gift of $US15 million, by three annual instalments, in favour of Israel’s Tel Aviv University.

Similarly, she engaged several professionals to decide whether (and, if so, in what terms) to make a will; a draft will was produced in May 2017, which MP declined to sign. MP disclaimed the draft in emails she wrote on May 2017, August 2017 and April 2018

In April 2018 MP suffered a stroke which has left her almost totally incapacitated; she lives in a nursing home and has lacked testamentary capacity since the time of her stroke.

MP falls into a more difficult category of lost capacity cases as she did not make a will, despite having testamentary capacity to do so. Therefore the court’s main concern is to ascertain the actual or reasonably likely, subjective intention of the incapacitated person.

MP was a protected person who engaged a professional adviser to prepare a draft will favouring her grandson; this Will was emphatically rejected by her before she was incapacitated by a stroke. The grandson applied for a statutory will for MP in substantially the same terms as the draft will.

The Court noted that MP showed no concern regarding the prospect of dying intestate concluding that in terms of section 22(b) of the Succession Act 2006 it could not properly be satisfied that had MP had testamentary capacity that it is reasonably likely that this or any other proposal for a Will, would have been made.

‘In my opinion, in a lost capacity case in which the incapacitated person has never made a will, the Court ought not to start with a presumed intention against intestacy. The Court must be satisfied by the evidence that is “reasonably likely” – in the sense of “a fairly good chance” – that the person would have made a will at some time or other, had not testamentary incapacity supervened.’.

MP was 90 years old and her estate had an estimated value of $100 million; she had engaged estate planners in order to manage her assets but wasn’t happy with the Will that they drafted.

How would your family be placed if you were to suffer a catastrophic injury?

• Do you have arranged income protection, life insurance or both?

• Do you have and Advance Care Directive or Power of Attorney in place?

• Have you made a Will?

Perhaps it’s time to take steps to do these things today.














Elder Abuse – takes many forms

The World Health Organization believes one in six people suffer from elder abuse worldwide; as the population and number of people with dementia-related illnesses increase as a corollary the number of those lacking capacity, there is a concern that the number of people being abused will escalate.

Richard Elliott lived with his father Ken in a bungalow in the suburbs of Cardiff; their relationship was not always amicable. Shortly before Ken died he called a solicitor to his hospital bedside to change his will leaving the £212,000 property to his friend of over 30 years Graeme Prance. Ken was being treated for kidney failure and arranged a meeting with Graeme; during the course of this hospital visit, Ken gave Graeme a copy of his new Will, asking him to keep it secret.

On the day Ken died Graeme told Richard ‘ you realise your dad left me the bungalow?’ assuring Richard he wouldn’t be evicted and could keep living there rent-free. Richard began the equivalent of a family provision claim challenging his father’s will; believing that Ken left the bungalow to him in his Will as Richard’s mother left it to Ken to be passed on to Richard.

Graeme was concurrently charged with fraudulently appropriating over £60,000 of Ken’s savings after being appointed by Ken as Lasting Power of Attorney (LPA). Appointing an attorney gives your attorney the legal authority to manage your financial affairs.

Although Ken gave Graeme £15,000 to buy a Van and pay for an overseas holiday; over £50,000 of unauthorised transactions occurred following Graeme’s appointment. A Power of Attorney must act in the best interests of the donor. Graeme claimed that all the expenditure was authorised by Ken; however, once the Power of Attorney had been granted the pattern of spending changed dramatically.

Under the Will Richard expected to inherit the £60,000, as Graeme had spent the majority of the savings in Ken Elliott’s accounts, Richard would inherit very little.

Graeme was convicted of four counts of fraud and following repayment of the money given a two year suspended sentence, and ordered to carry out 200 hours of community work.







Family Provision & Emigration

Norman Yee emigrated from Hong Kong to Australia in 1941; from the 1950s to the 1980s Norman and his wife Doreen assisted other family members to emigrate from Hong Kong and Southern China to Australia. Norman died in May 2013 at the age of 89 having made his last Will in June 2012. Norman appointed his son Robert, and his brother Phillip, as his executors.

Norman made seven wills in his life, however, although he made provision for his two adopted children, his second wife and her daughter Norman made no provision for any of the extended family members he had helped to emigrate to Australia.

Norman assisted his nephew William to emigrate to Australia; William lived with Norman from the age of nine for ten years. Norman’s last will dated June 2012 made no provision for William. William made a family provision claim from Norman’s estate.

The estate concedes that William is an “eligible person”  under the Succession Act and is able to make a claim for provision. But argues there are no “factors warranting” the making of any order for provision in William’s favour, and submits that no order should be made; and in the alternative, if one were to be made, that it should only be modest.

William argued that the relationship he had with Norman was more like father and son; providing him with financial assistance, accommodation and employment well into my adult life. William argued that he and Norman shared a close bond and when his uncle was diagnosed with leukemia he visited him and kept in touch with him by phone.

Robert disagreed that William and Norman were like father and son. William called him “uncle”, not “dad”. He contended that the bond between Norman and William was in not as close as the bond Norman had with his children and Robert and his sister never regarded William as our sibling.

Robert argued that Norman was very generous and that he took responsibility for the many relatives he assisted to emigrate to Australia.  William was merely one recipient of Williams’s generosity.

Robert submitted that Norman believed William  “had a bad habit of losing the money he cannot afford to lose”, “spends too much money on fancy clothes”, “gambles too much and never goes to work” and is a “good for nothing”. Further, William did not share a close relationship with Norman during the last years and months of Norman’s life; when he was diagnosed with leukemia William was not told, an analysis of my William”s phone records would show that he never rang Norman

William conceded he had debts and had been impecunious but “a just father’s moral duty is to assist the lame ducks amongst his offspring”. therefore the court should allocate a share of my uncle’s estate to me.

Robert submitted that Norman made seven wills during his life and did not provide for William in any of them; therefore the court should reject my cousin’s family provision application.

The court found that while William had lived with his uncle Norman for a significant period and had been supported by him, both while growing up and into his adult life, it was not because Norman considered William to be like a son.

While it was conceded that William lived with his uncle for longer than most of the other relatives from China, this did not negate the fact that he was living with him as a member of his extended family, not as his son.

The court rejected William’s assertion that he had had a father-son relationship with Norman, although William was financially dependent on Norman to a large extent when he was younger, this could not be said with respect to his adult life.

The court found that while William had demonstrated need, that need was largely self-inflicted. Given the circumstances of William and Norman’s relationship, there were no grounds for the estate to carry the burden of William’s poor financial decisions.