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1 of 10 DOCUMENTS: Australian Current Law Reporter/1994/395 -- SUCCESSION/QUEENSLAND/ [395 QLD 2] Re Sahariv

[395 QLD 2] Re Sahariv -- Supreme Court, Qld -- Derrington J -- 18 Feb 1994 997/93, , 7 pages
Family provision -- Widow -- Large estate ($2.6m) -- 43 year marriage -- Widow provided initial capital -- Contributed to accumulation of estate -- No competing claims -- Whether widow should take matrimonial home in fee simple Held, giving judgment: (i) The widow is entitled to full consideration of her justifiable needs and in the circumstances, including the size of the estate and the widow's contribution to it, she is entitled to the security of total ownership of her own home. (ii) Her entitlement to her own home does not extend to the present matrimonial home which she acknowledges is too large for her, and in order to provide a smaller home for her she shall receive $250,000 in substitution of her life interest in the matrimonial home.

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2 of 10 DOCUMENTS: Australian Current Law Reporter/1994/395 -- SUCCESSION/SOUTH AUSTRALIA/[395 SA 5] In the Estate of Moore (dec'd)

[395 SA 5] In the Estate of Moore (dec'd) -- Supreme Court, SA -- Legoe J -- 22 Apr 1994 S4508, , 9 pages
Wills and codicils -- Application by Registrar for directions -- Home-made will -- Executor not appointed -- Money, house and possessions to sister -- After sister's death to nephew -- Question of construction -- Testator's intention -- Will read as a whole -- Life interest for sister -- Sister entitled to apply for letters of administration In the Estate of Lupton [1905] P 321, applied.

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3 of 10 DOCUMENTS: Australian Current Law Reporter/1994/395 -- SUCCESSION/SOUTH AUSTRALIA/[395 SA 6] Bagot's Executor & Trustee Co Ltd v Minda Home Inc

[395 SA 6] Bagot's Executor & Trustee Co Ltd v Minda Home Inc -- Supreme Court, SA -Millhouse J -- 24 Jun 1994 S4630, , 12 pages
Distribution -- Deceased son intellectually disabled -- Whether distribution to those entitled under deceased's intestacy or to residuary legatees of parent's estates -- Plaintiff trustee of parent's estates -- Armchair principle Held, answering the stated questions: (i) The deceased's parents set up discretionary trusts in their son's favour. (ii) There was no absolute life interest. (iii) Distribution of the residual accordingly falls to the residuary beneficiaries.

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4 of 10 DOCUMENTS: Australian Current Law Reporter/1993/395 -- SUCCESSION/VICTORIA/[395 VIC 4] Marie v Gammon

[395 VIC 4] Marie v Gammon -- Supreme Court, Vic -- Gobbo J -- 5 Nov 1992 11658/91
Wills and codicils -- Claim by widower -- Testatrix provided life interest in favour of plaintiff (husband) with remainder to pass to defendant -- Life interest to live in any house owned by testatrix rent free apart from house in which testatrix and plaintiff had been living -- Plaintiff pensioner no assets -- Defendant friend cared for testatrix over long period -- Strained relationship between plaintiff and testatrix for some years -- Provision made for plaintiff

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5 of 10 DOCUMENTS: Australian Current Law Reporter/1993/395 -- SUCCESSION/WESTERN AUSTRALIA/[395 WA 10] Dean v Public Trustee

[395 WA 10] Dean v Public Trustee -- Supreme Court, WA -- Murray J -- Judgment received 12/3/93 5 Mar 1993 930105
Family provision -- Application by deceased's -- Deceased leaving life interest in matrimonial home to widow -- Small estate -- Failure of deceased to make -- Order for plaintiff to have ownership of home and specific gift from residuary estate (WA) Inheritance (Family and Dependants Provision) Act 1972 s 6.

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6 of 10 DOCUMENTS: Australian Current Law Reporter/1993/430 -- TRUSTS/SOUTH AUSTRALIA/ [430 SA 1] Marriott v Franklin

[430 SA 1] Marriott v Franklin -- Supreme Court, SA -- Duggan J -- Judgment received 5/7/93 2 Jul 1993 SCGRG-90-772
Constructive trusts -- Action for partition of property by daughter against mother -- Parties made tenants-in-common of property from grandmother's will -- Whether defendant promised that she could remain in house for rest of her life -- Whether constructive trust of life interest in favour of defendant Real property Title Action for partition of property by daughter against mother Parties made tenants-in-common under grandmother's will Whether constructive trust in favour of defendant existed Held, for the plaintiff: (i) No intention to create a trust existed. (ii) The application for partion was granted and an order for the property to be sold was made.Glouftis v Glouftis (1987) 44 SASR 298, applied.Muschinski v Dodds (1985) 160 CLR 583; (1985) 62 ALR 429; (1985) 11 Fam LR 930; [1985] DFC 95-020; R v Birks (1987) 164 CLR 137, distinguished.

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7 of 10 DOCUMENTS: Australian Current Law Reporter/1992/395 -- SUCCESSION/VICTORIA/[395 VIC 18] Spencer v Spencer

[395 VIC 18] Spencer v Spencer -- Supreme Court, Vic -- Brooking J -- 9 Nov 1992 4756/88
Testator's family maintenance -- Application by for further provision out of father's estate -- Devise of house to defendant son with remainder divided equally between plaintiff and daughter -- Son on disability pension for chronic schizophrenia -- Further interest would enable plaintiff to obtain life interest in small flat -- Small estate -- Further provision made (VIC) Administration and Probate Act 1958 Pt IV.

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8 of 10 DOCUMENTS: Australian Current Law Reporter/1991/075 -- CHARITIES/NEW SOUTH WALES/[75 NSW 2] Cousins v Cousins

[75 NSW 2] Cousins v Cousins -- Supreme Court, NSW Court of Appeal -- 18 Dec 1990 CA40366/90
Gifts -- Gift of grazing property from childless couple to relatives -- Improvident nature -- Donors intention to live on property for life -- Intention not given legal effect -- Dispute -- Donees mortgaged property -- Setting aside gift Legal practitioners Professional liability Solicitors Negligence Held, dismissing an appeal: (i) As to the decision in favour of the donees; By Priestley and Meagher JJA because the findings of the trial judge on the evidence precluded a contrary decision, by Kirby P because the plaintiffs had not made out a case for relief. (ii) As to the decision in favour of the solicitor: (a) A solicitor owed a common law duty to his client as well as a contractual duty. (b) By Priestley and Meagher JJA: The solicitor was not negligent. By Kirby P: In relation to the transfer the solicitor had not observed the high standard of care required of the legal profession, particularly in family arrangements, but having regard to the subsequent refusal of a life interest and the communication of the solicitor to the donees at that time, it was not the breach of duty that resulted in the damage.Hawkins v Clayton (1988) 164 CLR 539, applied.

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9 of 10 DOCUMENTS: Australian Current Law Reporter/1991/205 -- FAMILY LAW/FAMILY COURT/ [205 FAM 24] In the Marriage of Brennan

[205 FAM 24] In the Marriage of Brennan -- Family Court of Australia -- Hase J -- 15 Feb 1991
Property interests -- Valuation of husband's interest in a property subject to a life interest -Appropriate -- Appropriate method of valuation of a life interest Property interests -- Applications for declarations of trust in respect of various properties in the names of the husband and wife -- Husband's mother (first intervener) transferred house into husband;s name -- Later returned to live in house -- Wife and wife's de facto purchased investment proprietors -- Whether constructive or resulting trust arose -- Whether certain property was a gift mortis causa Held: (i) Notwithstanding that the circumstances were confused, the first intervener gave the whole of the legal and equitable interest in her property to the husband only and she did not intent to give a beneficial interest in the land to the wife.There was no resulting trust in favour of the first intervener. (ii) The transfer by the first intervener to the husband was not a gift mortis causa. It was a method of enabling the husband to manage the property while the first intervener was overseas and was not a gift to take effect upon her death. The first intervener was not entitled to have the property transferred to her on the basis that she had resumed possession of a gift. (iii) The first intervener and the husband reached an understanding that the first intervener would, during her life be able to live rent free in the property. A constructive trust which is a life tenancy was created in favour of the first intervener. (iv) The value of the first intervener's life interest involved a consideration of the value of the property, an appropriate rate of return being the selection of an interest rate by reference to a return on the particular property for the life of the tenant, and a life interest factor so as to arrive at an amount which if invested for life, would produce $1 on her death. Reported in (1991) 14 Fam LR 725 (CTH) Family Law Act 1975 s 79.

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10 of 10 DOCUMENTS: Australian Current Law Reporter/1991/395 -- SUCCESSION/NEW SOUTH WALES/[395 NSW 22] Caldwell v Ang

[395 NSW 22] Caldwell v Ang -- Supreme Court, NSW -- Young J -- 22 Mar 1991 ED No 4381/87
Family provision -- 67-year old widow -- Marriage of 26 years duration -- No children -- Adequacy of provision -- Absolute gift of part and life interest in rest of testator's property Wills and codicils -- Gift of `half' of farm property Words and phrases `half' (farm property) Held: (i) Under the will the widow took a half interest in quantity of lot 42 and the other half for life. Lot 41 was part of residue. (ii) In the circumstances of the case, an award should be made in favour of the widow of the whole of lot 42 and, because she wished to use lot 41 as well, she should have lot 41 and there should also be a monetary award. The order in favour of the widow should affect the gifts to two beneficiaries who had helped the deceased during his lifetime less than those to other beneficiaries.Comment made that with respect to a spouse in her 60s and 70s or later, a life estate in a residence is not likely to be adequate provision because of the changing circumstances of the spouse as old age advances and other likely unavoidable problems as to who should bear capital expenses. (NSW) Family Provision Act 1982 s 7.

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