News

Trading Trusts: 556 Priorities and Remuneration Issues

October 18th, 2016

Tim McGrath, Partner in our litigation department, has recently penned an article discussing the liquidation of trading trusts.  An excerpt from the article is featured below.

“Considerable disquiet has arisen as a result of a series of recent authorities arising in the New South Wales Supreme Court.  The decisions involve the liquidation of companies which are (or were) trustee companies and the claims of creditors whose debts were incurred by the company, in its capacity as trustee of the relevant trust.”

Click here to read the full article.

For more information about this issue and all insolvency-related matters please contact Tim on 07 4036 9708.

Disentitling Conduct

October 5th, 2016

A son’s actions leaves him rightfully excluded from his mother’s estate

It is not uncommon to receive instructions from a client that they wish to leave a spouse, child or a dependent out of their will, usually because of a family disagreement or argument.  In these situations I always alert my clients to the fact that where a spouse (married or de facto), child (including step children and legally adopted children) or dependent has been left out of a will they have the right, by law, to contest the will.  In Queensland, this is called a family provision application.  It is important to understand that a mere disagreement between family members or the fact that they have not spoken in some time, is not enough disentitle a claimant from bringing an action against an estate.  To be disentitled from an estate, the conduct committed by a spouse, child or dependent must be severe.

The recent Western Australian case of Christie v Christie [2016] WASC 45 recognises that domestic violence constitutes disentitling conduct.

Facts

The plaintiff in this case was the only living child of his deceased mother (“the deceased”).

The deceased had excluded the plaintiff from her will instead leaving her estate, worth approximately $900,000.00, to a range of different family members.

The plaintiff, aged 69 years and destitute, through various affidavits, painted the picture of a loving son always willing to have a close relationship with his mother who instead was pushed away without any explanation.

The defendant, a granddaughter of the deceased, however provided considerable evidence to the contrary, alleging that the plaintiff was physically violent towards his mother.  The allegations against the plaintiff included holding the deceased in a headlock, pushing her in to walls, hitting her and threatening to set her on fire.

The plaintiff denied every allegation put to him and said he was not a violent person and had never come to the notice of the police in respect to any act of violence.  The defendant, however, presented further evidence to the court that the plaintiff had been charged with a number of offences, had been convicted of at least one offence, and was the subject of a violence restraining order.

Decision

The court was satisfied that the plaintiff was physically violent towards the deceased and denied the plaintiff’s claim for further provision, making the following statement:

“Violence against women is never acceptable.  It is at odds with a basic tenant of civilised society … A person who is violent towards a testator cannot simply expect to be provided for in a will or if not provided for to come before the court and receive a proportion of the estate.  The acts of violence reap their own reward.  That is exactly what has happened in this case”.

This case demonstrates the severity of conduct that amounts to disentitlement from an estate.

Is your estate at risk?

As part of your estate plan it is necessary to consider the risk of potential family provision claims and seek advice from an experienced wills and estate solicitor.  Bear in mind, it is not only family disagreements which leave an excluded beneficiary contesting a will.  A family provision application may also arise in instances where a parent has left their estate equally to their children, however one child suffers from a disability (where they are unable to work) and therefore have a greater need, over their sibling, to be financially provided for by their parent’s estate.

If you are thinking about excluding or reducing a family member’s entitlement in your will or have been unfairly left out of a will and would like to discuss your prospects of a family provision claim, please do not hesitate to contact me by phone 4036 9732 or email biancastafford@millerharris.com.au.