Estate Litigation

Recent Case on Court Made Wills – protecting the children until age 25 years

by Judica Swift on November 2, 2015 Comments Off on Recent Case on Court Made Wills – protecting the children until age 25 years

Court Made Wills (also known as Statutory Wills) is a fairly new and novel area of the wills and estates legal practice space.  The existence of this area can be an incredibly beneficial option available to those that suffer a disability and therefore don’t have the requisite mental and legal capacity to make their own will.  The law allows a family member to apply to the Court to permit the Court to make a will for that person in this situation. As you can probably imagine it has a clear formula as to whether the Court could and should make such a will and it has to be one that the disabled person would make themselves if they had the capacity to do so.

In the latest case of JW v John Siganto As the Litigation Guardian for AW & CW, the testator is 30 years old and was severally disabled in a car accident 10 years earlier.  The testator’s parents have been his primary carers since his accident and also care for and have custody of his two minor children, AW (13 years old) & CW (10 years).  The relationship between the testator and the children’s’ mother had broken down shortly after the accident and she no long has custody of the children.

The Court heard the application by the father to make a will for his son on the basis that the estate to set up two trusts for his son’s minor children to hold their interests in a testamentary trust until they reached the age of 25 years. The primary reason for doing so was that the estate was now quite substantial in value after a favourable outcome from litigation resulting from his son’s accident.  In addition to this main benefit, the will was also to benefit the applicant and his wife (his son’s primary carers for the past 10 years) and the testator’s sister who had also shown alot of support to the family since the testator’s accident.

Under the rules of intestacy, his children would receive the whole of the estate in equal shares at the age of 18 years.  The applicant’s argument was that such trusts being set up would ensure that the children would benefit from having guidance on how to manage such a large sum of money until they reached the age of 25 years. The estate was estimated to be approximately $9 million. The establishment of the trusts also provided taxation benefits for the children.

The court, being satisfied that the application met all the requirements and it being a will that the testator would make himself if able, allowed the application and proposed will.

You can read the full case here.

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Judica SwiftRecent Case on Court Made Wills – protecting the children until age 25 years

We’re coming to Ipswich!

by Judica Swift on July 10, 2015 Comments Off on We’re coming to Ipswich!

Our Logan & Scenic Rim branch is extending its service area to include our Ipswich community!

We appreciate how hard it is to get legal advice when and where you need it and that’s exactly why we’re extending our service area.  We’re listening and evolving with our clients’ needs and offering all our legal services to our Ipswich communities.  This includes all conveyancing services, wills, estates, powers of attorney, trusts, guardianship, retirement planning and retirement village contracts and elder law.  And there is still no catch; we still come to you at no extra charge!

If you need assistance with your legals, please contact your local team on 07 5547 7112 or email your local Solicitor, Nikki Gough, at

See you soon!

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Judica SwiftWe’re coming to Ipswich!

Family Provision Costs Capped – Cerneaz v Cerneaz [2015] QDC 073

by Judica Swift on April 8, 2015 Comments Off on Family Provision Costs Capped – Cerneaz v Cerneaz [2015] QDC 073

Cerneaz v Cerneaz (No 2) [2015] QDC 073

And another day brings another case on costs, but this case stood out to us and we’ll tell you why.

The case of Cerneaz v Cerneaz [2015] QDC 41 involved a FPA claim by a de facto spouse. The Court ordered a legacy in favour of the applicant in the amount of $350,000.00.

On 7 April 2015, the Court was to determine costs for the matter.

By way of background, the applicant served her application and supporting affidavits on the respondent on 10 July 2013. The applicant failed to serve a draft directions order in accordance with the District Court Practice No 8 of 2011. The applicant’s documents were significantly lacking in detail and failed to articulate her case. As a result of the lack of information, a good deal more material had to be compiled and filed by the respondents and much correspondence was sent to and fro.

Mediation took place on 31 October 2013 and was unsuccessful.

With the exception of an offer to settle on 27 November 2013, the applicant took no further steps to progress her claim after mediation.

On 27 June 2014, the applicant filed an affidavit that addressed her health and income details.

The applicant’s initial affidavit material deposed that she was advised that costs up to final trial would be in the order of $40,000-$50,000.00. As of March 2015, the applicant’s costs far exceed that amount to the value of $140,045.74.

His Honour at para [68] considered that “the court should have regard to the practice direction when considering how to assess what costs order should be made.”

His Honour at para [70] confirms the position that the costs should have been made available to him at trial as it would of course be relevant to the exercise of the discretion at the second stage.

It is evident reading the remarks between the parties that the applicant did not place the requisite emphasis on the principles nor the process of her claim which was to her detriment. His Honour appeared to appreciate that the respondent persevered through the lacking detail and pressed for compliance with precedent and the relevant directions.

This case serves as a very important reminder to all practitioners that process should be respected so as to avoid unfavourable outcomes in general and in respect to costs. Perhaps it also serves as a reminder that all parties should be approaching the issues to resolve in a united matter to enable a resolution of any (if not all) the issues as early as possible (paras[67], [73] and [74]).

It also reminds us all that whilst you may have a genuine FPA claim, the process by which that claim should be run is entirely relevant to not only the second stage of Singer v Berghouse, but also determining costs.

It is clear from His Honour’s judgement that the Respondent’s solicitor’s skills and expertise in this area certainly made a difference.  A thorough understanding and due respect for the principles and process of these types of matters is essential to ensure that the matter is run smoothly and the outcome is favourable to the client not just in the initial family provision claim, but also in respect of legal costs.

You can read the case here.

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Judica SwiftFamily Provision Costs Capped – Cerneaz v Cerneaz [2015] QDC 073