Supreme Court of Western Australia
1: Mead -v- Lemon [2015] WASC 71 |
Court or Tribunal: 
Catchwords: Family Provision, High Value Estates, Large Estate, Wills & Probate
Judges:  Sanderson Master


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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Court or Tribunal: 
Catchwords: De Facto Relationship, De Facto Relationships, Domestic Partner Declaration, Domestic relationship, Estate Planning, Failure of testatrix to make provision, Family Provision, Intestate, Substantial Relationship, Succession, Succession, Wills
Judges:  Gzell J


Background: This case considered the issue of family provisions and whether or not a young student who was living in a domestic relationship with an elderly woman was entitled to claim against the estate. Michael Ye, the plaintiff, came to Australia from China to study. Frances Lan Fong Fung (the deceased) was separated (but not divorced) from her husband, and invited Mr Ye to move into her unit where he lived in a non-sexual relationship with her. She was 37 years his senior. Frances Lan Fong Fung died on 21 June 2001. In her Will, Frances Lan Fong Fung made no provision for Mr Ye. Mr Ye made a claim against the estate, claiming that he was in a non-sexual de facto relationship with the deceased. 
 
  [Legal Issue]It was submitted that de facto is to be contrasted with de jure and the relationship determined by reference to the facts rather than a relationship between parties recognised at law. But that approach fails to give due regard to the requirement that the individuals in question live together as a couple. It was submitted that the word “couple” was one of wide import and required only that there be two unmarried adults. But the definition specifically requires two adult persons who are not married or related by family. To construe the word “couple” in that general sense, adds nothing further to the definition and renders the Property (Relationships) Act 1984, s 4(1)(a) otiose. It was submitted that the difference in age of 37 years was not, of itself, significant. The parties    [Court Orders]The Court found that Mr Ye was not the de facto spouse of the deceased within the meaning of the Wills, Probate and Administration Act 1898, s 32G. As such, the plaintiff, Mr Ye, could not claim any relief against her estate on this basis. However, in separate but related proceedings, the plaintiff also claimed to be in a domestic relationship to the deceased, having considered her to be his "honorary auntie". These related proceedings were held subsequently to this hearing, and would be      


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