In a recent case that went to the NSW Supreme Court on Appeal the court made provision against the crown. In the case of Smile v Public Trustee [2008] NSWCA 190 two former step sons of the deceased successfully appealed against an earlier decision in the lower courts.

The basic facts of the case were that a Mr Kowinski had died leaving a Will which gave the whole of the estate to his wife f she survived him by 30 days. The will did not make any further provisions. The wife died one week before Mr Kowinski. As a result the estate passed to the Crown as the deceased had no other blood relatives. The estate was not large – about AU$225,000.00.

The step sons applied initially under Section 7 of the Family Provisions Act 1982 (NSW) and were initially rejected on the basis that the original judge had decided that they were well off enough and did not warrant consideration from the estate for the advancement in life.

The Act specifically requires a determination as to whether or not the claimants had been left without adequate provision of their proper maintenance and advancement in life. The courts all agreed that the relationship of father and son existed despite the claimants being step-sons.

However the initial hearing heard that the two sons seemed to be relatively well off and both had houses and jobs. Evidence was originally provided that the two brothers did not have any adequate provision for their retirements which was not that far off.

On appeal the Court decided that they needed to account for prevailing community standards as to what is right and appropriate for the maintenance and advancement in life. The advancement in life they further decided should be considered so as not to just take into account he current circumstances of the claimants but rather what they may require in the future. The Court ordered in the circumstances that the two sons take the estate equally after the payment of all testamentary and litigation costs. (Would there be any left!!)

The case highlights the need for Wills to be regularly updated, this Will was made in 1973, 32 years prior to the death of the deceased. It also raises issues when drafting Wills of adequately explaining to the client who may make further claims under the FPA and not relying on the fact that someone left out of an estate may be “ell off”. In another recent case a Solicitor was criticised for drawing a Will where the prospect of a FPA claim was inevitable.

Stamp Duty – The End Is Near.

Several years ago stamp duty on marketable securities (listed shares) was abolished across Australia. However, any transfers of shares or units in unlisted companies still existed. Many clients in New Zealand have had in particular, units in investment trusts which have been subject to assessment even at nominal rates for transfers to family trusts or beneficiaries in estates. From 1 January 2009 these duties are abolished. If you are considering any transfers of this nature it may be best to hold off another few weeks.

Unclaimed Money

Readers and their clients may be about to be bombarded again with letters regarding the funds some companies have found for their clients. The annual government gazette in Victoria has just been published. This is the gazette which publishes the unclaimed funds sent by institutions and banks to the government. The publication shows the amount, name and last known address. The letters sent from the various money finding organisations do not show the source of the funds thereby normally making it difficult to claim directly. There are several websites you can look at including the three main government websites and the gazette site itself to download the latest gazette. Using a PDF search mechanism you can locate your clients name.|recentgazettes

Just try looking at the latest gazette (in two volumes dated 31 October 2008) and type in NZ or New Zealand and see how much money is going to the Government!!

Finally I wish you a very merry Christmas and a prosperous 2009!!

PUBLICATION: ENVOY – The newsletter of The New Zealand Institute of Legal Executives
DATE: December 2008
AUTHOR: Andrew Johnstone, APEARS, Sydney, Australia

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