3. WILLS AND ESTATES
CASE LAW UPDATE
Nathan McOmish

4. PART IV CLAIMS Background
IMO the will of Vourdoulidis
Background
S91 APA: any person may make a claim against a deceased estate for provision for proper maintenance and support. Look at moral obligation
Factors include relationships, other beneficiaries or applicants, financial resources, disability, age, contribution, conduct, any other factor
Grey v Harrison (1997) 2 VR 359: “an instinctive synthesis that takes into account all the relevant factors and gives them due weight”
Deceased died intestate, estate left to uncles overseas
Plaintiff was first cousin, 50 yo, unable to work again, had house + $200K
Plaintiff helped care for disabled deceased over 15 years
Modest estate of $220K, provision of $150K
Part IV claim extended to first cousin
Nathan McOmish

5. PART IV CLAIMS $850K estate, $100K left to 53 yo disabled step son
Busuttil v DeGabriele
$850K estate, $100K left to 53 yo disabled step son
Rest of estate went to persons with no special call on the estate
Plaintiff’s deceased father left assets to his wife, the deceased’s stepmother
Deceased changed her will 11 weeks after the plaintiff’s father died, reducing his provision from 1/3 to $100K
The plaintiff’s relationship with the deceased was “somewhat superficial and tenuous” and “generally unwelcoming”
Held – entitlement to a legacy of $250K
Several cases now where step son has been successful, but all where the applicant’s parent pre-deceased the step parent
Nathan McOmish

6. PART IV CLAIMS
Larkin v Borg
Deceased died a widower, leaving $7.6 million estate to daughter
The Plaintiff was:
A girlfriend of the deceased for 19 years
1 of 3 girlfriends
65 yo, no assets and lived on a pension
Held, the relationship did not give rise to a moral duty:
Mistress/girlfriend
Deceased had stronger relationships with 2 other women
Deceased never told the Plaintiff that he loved her
They did not present publicly as a couple
Similar cases distinguished as “the emotional and spiritual bonds were strong” and social units were “tantamount to a family”
Nathan McOmish

7. PART IV CLAIMS
Dinakis v Zurcas
$5.7 million estate, mostly left to son and issue. $950K left to each of the two Plaintiff daughters
Discovery sought for financial records of companies and trusts from 2006 to Plaintiff alleged tens of millions already conferred on the Defendant
General rule: Re Borthwick [1948] Ch 645, discovery will not be ordered in TFM cases unless:
Discovery relates to a question in the proceeding
Special circumstances exist
Application rejected on both grounds
Order sought was disproportionately large, would add 6 months to the litigation, increase trial from 3 to 10 days, increase costs
Not consonant with s7(1) of the Civil Procedure Act 2010
Just, efficient, timely and cost effective resolution of the facts in issue
Nathan McOmish

8. PART IV CLAIMS Extension of time application. General principles:
Galvin v Semkiw
Extension of time application. General principles:
Does the Plaintiff have an arguable case?
What was the period of delay and any explanation for it?
Is there any prejudice to the beneficiaries if time is extended?
Plaintiff divorced the deceased 29 years ago and at this time entered into a s89 Family Law Act settlement. The Plaintiff received the lion’s share of three properties
Plaintiff said her circumstances were exceptional:
5 month delay due to oversight by plaintiff’s lawyers
She entered into settlement under duress, no maintenance paid
Held, there was an arguable case
Extensions of time will often be granted if estate has not been distributed
Nathan McOmish

9. VLRC 1991 SCAG agreement to develop uniform succession laws
Consultation paper dealt with law and options for reform
Areas:
Wills – protection of older and vulnerable will makers
Family provision
Intestacy – distribution on intestacy
Executors – rules for lawyers who act as executors and also carry out legal work
Payment of debts
Small Estates – more efficient ways to deal with
Report before AG
Nathan McOmish