New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Succession


  1. 24/08/2016
    Succession: family provision; claim by adult son; applicant suffering degree of functional impairment; history of financial dependence on testator; testator made provision of house and costs of maintenance during lifetime; accommodation in significant disrepair; whether testator made adequate provision determined in context of pre-existing condition and station in life; factors include size of estate, proportion conferred on respondent, respondent’s financial need; Succession Act 2006 (NSW), ss 59(1), 60(2)

    Chan v Chan  [2016] NSWCA 222
  2. 07/04/2016
    Succession: intestacy; claim that plaintiff was de facto partner of deceased for many years; claim not accepted by primary judge; conflict between evidence of plaintiff and evidence of neighbours and social workers; paucity of documentary evidence; inconsistencies in plaintiff’s case; whether appellable error.
    Sadiq v NSW Trustee and Guardian  [2016] NSWCA 62
  3. 09/11/2015Hong Kong
    Succession: estate of deceased divided between five beneficiaries; subsequent dealings; whether estate monies properly used; whether beneficiary held estate property on trust; breach of fiduciary duties; Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 cited; Warman International Limited and Another v Dwyer and Others (1995) 128 ALR 201 cited
  4. 30/09/2015
    Succession: family provision order; adult child (claimant) claims further provision from moderately substantial estate of his mother; claimant dependent on parents; two siblings relatively well off; interim distribution under will offset against costs owed by the claimant to the estate due to intra-family litigation; whether primary judge erred in finding that claimant’s conduct in intra-family litigation did not preclude a family provision order; whether claimant’s conduct was malicious or in bad faith; whether the claimant’s financial needs included a provision for a two bedroom apartment; whether primary Judge’s discretion miscarried
    Smith v Johnson  [2015] NSWCA 297
  5. 24/09/2015
    Succession: wills; informal testamentary document; professionally drafted will amended, signed and dated but not witnessed; primary judge not satisfied that deceased intended document to form his will; document located separately from other testamentary documents, including a validly executed will; deceased in habit of signing and dating documents which were never sent; deceased aware of requirement to witness will; appeal dismissed
    Burge v Burge  [2015] NSWCA 289
  6. 22/09/2015
    Succession: application for family provision order under Succession Act 2006 (NSW), Pt 3.2; whether appellant “eligible” person; appellant’s relationship with deceased involved first the provision of sexual services and companionship for payment, and later, after some time without contact, the provision of domestic care; during period leading up to deceased’s death appellant staying overnight at deceased’s house for short periods while maintaining own residence; whether appellant and deceased living in a de facto relationship or close personal relationship at the time of his death (s 57(1)(b) or (f)); whether at some time appellant a member of same household as deceased and at any time wholly or partly dependent on him (s 57(1)(e))
    Amprimo v Wynn  [2015] NSWCA 286
  7. 16/09/2015
    Succession: family provision order; applicant claims a notional estate order from his mother’s estate; mother and applicant’s stepfather made mirror wills leaving their estates to each other and then to the applicant and four siblings equally; applicant has no immediate needs but claims that provision should have been made for his retirement; whether applicant should be precluded from claiming by reason of imprudent investment decisions; whether primary judge erred in finding that there was little chance that the stepfather would change his will; whether primary Judge erred in rejecting the claim
    Bates v Cooke  [2015] NSWCA 278
  8. 08/09/2015
    Succession: family provision; application by estranged daughter made out of time; applicant learnt about mother’s death one year after the fact; daughter obtained copy of will and foreshadowed claim but took no further steps for two more years; proceedings instituted more than three years after death of testator; estate then distributed; whether sufficient cause shown to make an order despite the delay; prejudice to beneficiaries demonstrated; Succession Act 2006 (NSW), s 58(2); applicant’s needs uncontested; applicant changed name and moved interstate; evidence of difficult relationship between applicant and deceased prior to estrangement; no meaningful attempts to reconcile; whether erroneous fact findings by trial judge; whether too much weight placed on lengthy estrangement and applicant’s conduct; application by estranged daughter dismissed
    Underwood v Gaudron  [2015] NSWCA 269
  9. 21/08/2015
    Succession: wills and probate; testamentary capacity; Administration and Probate Act 1958 (Vic), part IV; testator left estate to be held on trust in four equal parts; appellant one of testator’s four children; no provision made for appellant; new will made before death; whether testator affected by undue influence of beneficiary; no undue influence; whether testator had testamentary capacity; whether propounders of will discharged burden of proof in refuting challenge to testator’s capacity; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 standard incorrectly applied to propounders; burden of proof not discharged; leave granted; appeal allowed
    Giarrusso v Veca and Michielin  [2015] VSCA 214
  10. 17/07/2015
    Succession: family provision; application by adult children of earlier marriage; deceased left entirety of his estate to his widow; no provision made for his children from first marriage; previously the children forwent part of their grandmother’s estate in favour of deceased; deceased promised to make provision for them; whether court entitled to take into account the children’s expectation resulting from the representation; whether foregoing part of the grandmother’s estate a discharge of moral obligation to deceased and thus a reason not to make; Succession Act 2006 (NSW), s 60(2)(a) and (b); adult children with demonstrated financial need; widow with competing claims to the estate; whether trial judge properly balanced competing claims; whether judge erred in his discretion finding the widow was financially “relatively secure”
    Neale v Neale  [2015] NSWCA 206