Cases & Articles

Case studies often assist is providing actual information about some of the matter we have assisted clients with in the past.

Case Study – De facto wife and secret lover obtains order for provision

The deceased was separated from his wife and children.

Since he was a teenager he had conducted an affair with the plaintiff, before throughout and from the end of his marriage to his wife.

The deceased and his de facto never lived continuously together.  The deceased was a truck driver and after his separation from his wife he continued that occupation but whenever he was back from truck driving jobs he lived with or stayed with the plaintiff.

He became ill with cancer and moved in with the mother of one of his friends, who provided him with accommodation and provided care for him.

Just before his death, he made a will which left some of his property to his wife and bits and pieces to his children and a large amount to a non existent charity and nothing to the de facto. The deceased was extremely ill when he made the will.

We acted for the deceased’s lover /de facto wife.

The deceased and the plaintiff had a mutual commitment to a shared life, had exchanged rings and had tattoos done setting out their commitment to each other done simultaneously.

The matter was settled prior to trial for a satisfactory amount.

There was never any meaningful dispute whether our client was the deceased’s de facto.  She had been continuously in a relationship with him for the majority of her life, regardless of the fact that the deceased had been married or that he was a truck driver.

Case Study – 17 year old girl left out of Estate

A 17 year old girl’s parents separated when she was less than a year old.  She lived interstate with her mother.  Her father moved to the North Coast of New South Wales.  From a very young age she maintained regular contact with her father and visited him regularly, and after she went to school, spent a significant part of every school holidays with him.

About 15 years after the separation her father remarried.  Shortly after his marriage, he died without leaving a Will.

By operation of law, his wife was the most appropriate person to obtain Letters of Administration. The daughter had an interest in the Estate, which was not a large one but was a significant enough size for her to make enquiries through other relatives as to what could be done.

A family provision claim was brought and was successfully settled soon after commencement of the claim and well before the trial.

The result was a satisfactory one and many of her immediate and some future needs were met from the settlement.


Case Study – An adult, middle aged daughter of her father’s first marriage

Her father re-married.  Her father had a property settlement with his first wife who brought up and maintained custody of their two daughters until they left home.

The father re-married and twenty five years later, he died suddenly.

He left a Will leaving everything to his second wife and if she died before him, then to his daughters, but the entirety of his assets were jointly owned with his second wife as joint tenants, and so the will was effectively inoperative, as those assets passed to her as his survivor.

Our client had maintained contact with her father on an irregular basis from the time when she left home at the age of 18.  She lived many years out of Australia and struck up more contact with her father after email became a regular way of keeping in contact.  Her visits to Australia were rare.

At the time of her father’s death, she had very little in the way of assets herself.
She made an application against the second wife for a family provision order.

After some difficulties, but well before trial, the matter was resolved satisfactorily with a payment to our client.

The situation in this case is not an uncommon one.


Case Study – A man died leaving his adult son out of his will entirely

The man had never married his son’s mother and had never lived with his son. He had left his whole estate to a friend and her children. The administrator of the estate argued that the son was not entitled to anything because he had little or no contact with his father.

Turner Freeman took the son’s claim to court. We argued that the amount of contact with the father should not be held against the son. It was due to the circumstances in which he was born, he was not told who his real father was until he was much older, and his father had not encouraged contact. The court held the son should not be prevented from bringing his claim. As a result he was awarded a substantial portion of his father’s estate.


Case Study – A man who died in an air crash was survived by his wife, from whom he was separated but not divorced, and by a partner in a recent de-facto relationship

The man had made his Will several years before his death, and his separated wife was still the executor. His will left his whole estate to her, on a verbal agreement that she would hold it on trust for their teenage son.

Shortly after making his Will, the man began the de-facto relationship. The bulk of his estate was a half interest in his home, which he owned jointly with his de-facto partner. This partner claimed the whole of the estate including his half of their home.

Turner Freeman defended the separated wife against the claim. We argued the de-facto partner did not have sufficient need for the estate to provide for her, that she had the funds to buy the deceased man’s half of their home at market value, and that the son was an “eligible person” to inherit it. The Court of Appeal agreed, overturning an earlier judgment and dismissing the de facto partner’s claim.


Case Study – A husband died, leaving behind his two adult children from his first marriage, and his second wife, who also had children by a previous marriage

The couple had made identical wills. On the death of one partner, their estate was to be left to the other. On the death of that partner, the two sets of children were each to receive half the estate. But soon after the husband died, his second wife changed her will to leave the whole of her estate, including what she had inherited from him, solely to her own child.

Turner Freeman was not involved in making the husband’s will, but helped his children to bring proceedings. We argued that as the couple had made mutual wills, the wife was bound in contract, and could not lawfully change her will after her husbands death. The children produced evidence of conversations with their father in which he had expressed his understanding that she could not do so. The case went to the Supreme Court and the Court of Appeal, which dismissed the claim “with regret”. It held the children’s evidence was simply not enough to establish a contract that would stop the wife changing her will.

You can see how important it is to get good legal advice when making your will. It must be drafted properly to reflect your intentions. Had the couple made a contract in conjunction with their wills, each could have protected the interests of their own children, so the surviving partner could not cut out the other partner’s children.


Case Study – Public Trustee v New South Wales Cancer Council – the Estate of Rita Lillian McBurney [2002] NSWSC 220 (15 March 2002)

The deceased made a Will dated 1989 appointing the Public Trustee as Executor and left her estate to her husband and the residue of her estate to several charities, one of which was represented by Turner Freeman.

Other informal documents were found with the Will that appeared to contain the deceased’s wishes.  One such document gave the gift that was to go to the deceased’s husband to another person dated 1996, as by the time this new informal document was made the deceased’s husband had already died.

The Court determined that the informal document was in fact a codicil, or amendment, to the 1989 Will, despite the fact that it was not formally created.


Case Study – James v James [2006] NSWSC 1151 (27 October 2006)

This case is in relation to an application for a Family Provision Claim under the Estate of the deceased who died aged 77 years. The deceased was survived by his widow, who was his wife, the defendant, his son from a previous marriage, the plaintiff, and a daughter who did not bring a claim.  Turner Freeman acted for the son.

Under his Will, the deceased named his wife executor and sole beneficiary of his estate and did not leave any provision for his son.

The son was 47, single, living in Housing Commission and received a disability pension which left him approximately $306.00 per fortnight after rent was paid.  He also was in poor health.

Alternatively, the wife was 65, in good health, lived on her own property and lived modestly but comfortably.  The Court considered the wife’s future comfort in coming to its decision.

The relationship between the deceased and the son was limited and there was very little contact; however, the Court determined that the deceased ought to have made provision for his son given all the circumstances of the case, as it would be something the community as a whole would expect.

An order for $140,000.00 to be paid to the son from the Estate was made by the Court.


Case Study – Dolman and Anor v Palmer [2005] NSWSC 327 (31 May 2005)

This case is in relation to an application for a Family Provision Claim under the Estate of the deceased who died aged 71 years.  The deceased was survived by his first wife, his second wife, his de facto and his two children from his first marriage. The first plaintiff is the deceased’s daughter and the second plaintiff is his first wife. The defendant is a friend of the deceased who was appointed his executor. The deceased’s second wife and a former de facto partner have been given notice of the proceedings and made no claim.  Turner Freeman acted for the executor.

The deceased made his last Will in 2003 and left his property as to one half share to his son. He gave 25% to his sister and brother-in-law, 7.5% to his nephew and his wife, 5% to his sister and brother-in-law, 2.5% to the defendant and his wife, 5% to friends and the remaining 5% to a former de facto partner. He made no provision for either plaintiff and left statutory declarations in which he set out the reasons why he made no such provision.

In respect to his daughter he said:

“I have made no provision in my Will for my daughter for reasons including that she has made no contact with me, that is she has not visited me until very recently and has shown no interest in my welfare, even though she is aware that I have been ill in hospital. ”

In respect to the first wife he said:

“I have made no provision in my Will for my ex-wife, for reasons including the we have been divorced now for more than 10 years and, at about the time of our divorce, we reached an agreement which was endorsed by the family Court of Australia whereby my ex-wife received and adequate property settlement and also that she has, since our divorce, shown no interest in my welfare and has made no contact with me. ”

The deceased’s son left home in April 1984. In the middle of 1984 there was a separation between the deceased and his wife after 22 years of marriage. At that time the deceased occupied the upstairs of the property and his wife and the daughter occupied the ground floor of the property. It is plain that they lived totally separate lives from this time onwards.

The first wife was 71 years of age, single and had no dependants. She lived with her daughter in a property which she owned outright valued at $870,000. She had a small savings, was in good health and continued to work part time. She also received a pension of $235 per week, money by working in the school canteen for which he receives $100 dollars per week, as well as the board the received from her daughter. The first wife was obviously just making ends meet.

Although the first wife had entered into a property settlement with the deceased, there was evidence that he had not disclosed all of his assets at the time it was made.  The Court therefore determined that that the property settlement should be set aside and a provision made for the first wife from the Estate.

The deceased’s daughter was years 33 years of age, single and lived with her mother with no dependants. She was employed as an assistant visual merchandising manager by Myers on an annual gross salary of $50,000 and had modest savings. The deceased attempted to have contact with his daughter and be involved in her life when she became an adult, but was told that she wanted nothing to do with him.  Even after she became aware he was dying, she still did not make any effort to visit him in the hospital until her brother insisted upon it.  Due to her rejection of a relationship with the deceased, her claim was subsequently dismissed.

Case Study – When a man died, he left all his assets to his closest relative – a distant cousin

The deceased’s former wife sought to make a claim on his estate. The couple had divorced many years before his death. In their property settlement, made under the Family Law Act, each party agreed that they would have no further claim on the estate of the other. The ex-wife however, brought her claim under another piece of legislation, the Family Provision Act.

Turner Freeman defended the executor of the will against the former wife’s claim. Our argument was that she had released the deceased from any claim under the terms of the settlement. The court held that she could not make a claim on the man’s estate. The decision was upheld on appeal, and the executor won a costs order against her.


Case study – Turner Freeman client succeeds in obtaining substantial settlement for former wife of deceased

Turner Freeman acted for the former wife of a deceased.

Eligibility for claims by “former wives” is recognised by Section 57(1)(d) of the Succession Act 2006, but in practice such claims are rare.

A pre-condition to any successful claim by a former spouse is the absence of a property settlement.

Our client was able to prove an ongoing relationship with deceased despite a separation of over 12 years before the deceased’s death, and numerous factors warranting provision to her, such that she was able to obtain a settlement from the estate.

In particular she had maintained at various times a relationship with the deceased over a significant period after separation, and had no property settlement.

For more information and a no obligation assessment of  your particular circumstances, call Turner Freeman today on 13 43 63.