SMITH LAWYERS
INTERNAL MEMORANDUM
TO: Bill Smith
FROM: Jesse Inns
FILE NAME: Jones – Family
Provision Claim FILE NO: 1
DATE: January 9, 2012
Dear Mr Smith,
Please find below my
analysis of the applicant’s affidavit, and the legal issues involved in the
case.
Legal Elements:
Prima facie case:
A two-stage process
exists for determining a family provision application.
Firstly there is the jurisdictional issue, in which the applicant must satisfy
the court that adequate provision has not been made for them.
In satisfying this first element the applicant must demonstrate to the court
that the deceased's will did not make "adequate provision" for their
"proper maintenance and support.”
These concepts are relative and therefore in determining an applicant's case
the court will look at the applicant’s financial position, the nature of the
deceased's estate, the relationship between the deceased and the applicant, and
the relationship between the applicant and the beneficiaries.
In Bosch v Perpetual
Trustees the court constructed the meaning of the word 'proper' as;
"proper in all the circumstances of the case… whether a widow or child of
a testator has been left without adequate provision for [their] proper
maintenance, education or advancement in life must be considered in the light
of all the competing claims upon the bounty of the testator... And in the case
of a child... assistance in some chosen occupation.”
As a child of the
deceased as defined in s 40 of the Succession Act 1981 (Qld), Mrs Jones is
eligible to lodge a family provision application.
It must therefore be argued that ‘proper’ maintenance and support was not
provided to her.
The argument presented in her affidavit states that adequate provision has not
been made to her based on the fact that she is the only sibling not to receive
any provision from the estate. The date of the will appears to indicate that
Mrs Jones was cut out following the argument with her father about Nola. In Re
Crowly, the applicant was awarded a provision, as he was the only sibling to
receive no provision, following an estrangement with his mother.
This case could be used as a precedent supporting this application.
Mrs Jones financial
position is modest, with her debt eclipsing her assets. In light of the large
estate left by the deceased it would not seem adequate that Mrs Jones received
no provision. As laid out in Bosch v Perpetual Trustees adequate provision for
the applicant’s maintenance, and advancement in life should be considered.
Mrs Jones and her husband struggle with the cost of raising a disabled child,
and will continue to do so. In the future she may also have to reduce her work
hours to support her son, further straining her financially and hindering her
occupation. In Stern v Sekers; Sekers v Sekers, one of the applicant’s suffered
from a medical condition requiring care.
The court ordered extra provision due to the condition, including a carer.
An issue of relevance to
the case is that of moral duty, meaning did the deceased owe the applicant a
‘moral duty’, which would allow for a ‘moral claim’ upon the estate.
While the phrase does not appear in the legislation it has been applied by the
courts elsewhere, namely in Re Elwell.
The legislation though does include a reference ‘character or conduct’ of an
application,
which can be argued as a statutory direction that moral issues are relevant.
In Jee v Jee an adult daughter received only equal provision as her other
siblings, even though she cared for the deceased alone.
The court awarded her extra provision.
Our client burdened herself with the costs of a full-time nurse to care for her
father during his final months, following the departure of Nola. This could be
looked upon as the deceased owing Mrs Jones a ‘moral duty.’
The second step involves
the quantum of provision, which occurs if the applicant fulfills the first
step.
It is then up to the court to exercise its discretion in considering whether
any order will be made, and if so, to what amount. Provision should be sought for the
proper maintenance of Mrs Jones, in light of the costs she faces in raising her
family.
Out of Time Application:
Section 41(8) of the
Succession Act sets a time limit of 9 months after the deceased’s death for an application
to be lodged, however the deceased died on September 16, 2010, nearly 16 months
ago.
The section does allow though for the court to hear and determine an
application after this time at its discretion,
meaning justification as to why the application should proceed must be
presented.
A recent case involving
an out of time application is that of Curran & Ors v McGrath, in which a
claim was filed 15 months after the expiration of the time limit.
In this case the application failed as the court ruled that there was no
reasonable explanation for the delay as the applicants had been legally
represented the whole time, and had also provided notice of an intention to
make a claim.
The court here analysed
the principles that were outlined in Hills v Chalk regarding whether to grant
leave to the applicant.
These principles included, whether there is an adequate explanation for the
delay, if the beneficiaries would be prejudiced, the conduct by the applicant
and the strength of their case.
These factors must be
analyzed to determine the merit of Mrs Jones case. A case can be made for the
delay in lodging the application due to the relationship the applicant had with
her father prior to his death, and also the relationship with her siblings. Mrs
Jones has been undergoing counseling since her father’s death, and only now
feels she can face her siblings in court.
She has not seen a
lawyer since 1979, and was unaware that a will could be contested, which can be
argued as why an application was not launched prior, in contrast to Curran
& Ors v McGrath, where the applicant had been represented the whole time.
The strength of her case
as outlined above can be used to back up the out of time application.
The Position of Mr Jones’
Former Partner:
The letter from Mrs Jones
received by the firm contained information regarding her falling out with her
father. It occurred soon after her father; Jack Jones allowed his new partner
Nola, and her son Max to move into the family home. The relationship between
Jack and Nola lasted a few years until his battle with cancer proved too much
for Nola to handle and she moved out.
I analysed the nature of
the relation between Nola and Jack and concluded that she would not fulfill the
requirements for any entitlement under s 41 of the Act, and therefore the
affidavit of Mrs Jones, would not need to contain material identifying her as a
person having in interest in the estate.
As Nola and Jack never
married her position was that of a de facto partner, which is defined in
section 32DA of the Acts Interpretation Act 1954.
However a de facto partner can only be considered a spouse if as defined in
section 5AA(2)(b)(ii) their living together ended with the deceased’s death.”
Whilst Nola and Jack had been living together for two years, she left 2 months
prior to his death. Meaning that she cannot be considered a ‘spouse’ and has no
entitlement under under s 41.
The Amended Affidavit:
Mrs Jones affidavit has
been amended to meet the directions laid out in the Practice Direction No. 8
of 2001, ‘Family Provision Applications.’
As outlined above a
prima facie case that the applicant is entitled to bring an application is a
requirement of the affidavit.
The case I have outlined above has been added to Mrs Jones affidavit. Material
relating to why an ‘out of time’ application should be heard has also been
included.
Missing from the
original affidavit was information regarding her assets, liabilities, and
sources of income, which has since been added. The value of her car was not
provided, and should be followed up; an estimate of the private sale price has
been added.[34] The
fact an applicant is financially comfortable does not bar them from a
successful application, in particular if the estate is larger, as in the
present case.
Therefore even though Mrs Jones appears to be in a better financial position
than her siblings this should not be viewed as a barrier to her entitlement.
The affidavit has also
been edited so the ordering of points follows that laid out in the Practice
Direction under section 7.
Information Missing:
The affidavit should
also contain information regarding what assets of the estate have already been
distributed and to whom, as unless notice of a family provision is given to the
personal representative within six months from the date of death, then they are
free to distribute the estate. Once the assets have been distributed they cannot be brought back. In this case no provision can be made to Mrs Jones from the already distributed
assets.
The cost of Mrs Jones
medical expenses should also be added.
No comments:
Post a Comment