CASE: Fenwick, Re; Application of J.R. Fenwick & Re Charles [2009] NSWSC 530

WARNING: Disturbing content; child abuse

In this 2009 decision, Justice Palmer compared two different applications for a Court made Will (known as a Statutory Will).

Robert Fenwick had made a Will in 1987. Ten years later, he suffered a severe head injury at work which resulted in permanent cognitive impairment.

It was likely that the beneficiaries in his 1987 would die before him, causing an intestacy and Robert's more than $2million estate passing to the State government. To avoid that, Robert's brother John applied for a Statutory Will that would result in Robert's estate passing to his cousin's children.

The other application was in relation to an 11-year-old child who was given the pseudonym of Charles. Charles had suffered severe and irreversible brain damage when he was 4 months old. His medical condition also meant that he had a diminished life expectancy.

Charles received a victim's compensation payment which was managed by the Public Trustee on his behalf.

Charles was going to die intestate (without a Will), which was likely to result in his estate passing to his parents. Yet it was his parents who were suspected of having caused Charles' injuries when he was 4 months old.

The Public Trustee applied for a Statutory Will to be made for Charles that would leave his estate to his sister.

These differing applications were used as an opportunity to assess the approach of the Court to Statutory Will applications.

Justice Palmer was critical of the approach at the time to engage in what he referred to as a "fictitious test" whereby the Court pretended that the incapacitated person did have capacity in order to determine what Will that person would make.

Instead, he adopted this this test: is there a fairly good chance that a reasonable person, faced with these circumstances, would execute the Will that is proposed?

CASE: Allan v Dobbins & Ors [2024] QDC 169

When David Allan died on 14 June 2020, his Will left most of his estate to 3 of his 7 adult children.

Of the remaining 4 children, 3 were left with a mere $50 each and the last - Noel - was left nothing.

For decades, Noel had worked the family farm and been in partnership with his parents. But the partnership ended in 1998 when Noel threatened to shoot his father.

Noel walked away from the partnership with one-third of the family farm.

In David's Will, he expressly stated that he made no provision for Noel because Noel had received enough already.

Noel applied for further provision from the estate. Although he did not fully disclose his financial circumstances, it was determined that he was worse off financially then the three siblings set to inherit the majority of the estate.

Justice Allen determined that:

"The Court is not, on the evidence, in a position to gainsay the view of the testator... that the applicant had received "more than his fair share" of the estate during the testator's lifetime..."

Noel's application was dismissed.

CASE: R v Jackson [2024] NSWCCA 156

WARNING: Disturbing content - sexual intercourse without consent

Glen William Jackson operated a farming business outside of Goulburn. He employed a young man, JM, who lived in a shed on the farm.

On 24 April 2021, JM's 19 year old sister visited him. That night, 62 year old Glen Jackson sexually assaulted JM's sister.

Glen Jackson was found guilty of four counts of sexual intercourse without consent and he was sentenced to 3 years and 6 months in prison, with a non-parole period of 1 year and 10 months.

The Crown appealed against the sentence on the basis that it was manifestly inadequate.

CASE: Privet v Vovk [2005] NSWSC 1258

In April 2003, Maria Lendvai suffered a stroke and was hospitalised. As a result of the stroke, she became dependent on others for care and she would also say fantastic, unbelievable things that had friends doubting her cognitive state.

Maria was still in hospital two months later when, on 13 June 2003, a celebrant attended upon her and performed the marriage ceremony between Maria and Felix Privet.

On 30 June, the Guardianship Tribunal determined that Maria did not have capacity to make informed decisions about her accommodation and care. She was moved into a nursing home where she would spend the rest of her life.

Maria died on 14 October 2003 at the age of 81 years.

After Maria's death, Felix claimed to have the right as Maria's spouse to determined what would happen with her remains. He also produced a 2002 Will that Maria supposedly made leaving him the majority of her estate.

Maria's son Leonid applied to the Court for the alleged marriage to be declared invalid and the 2002 Will set aside.

CASE: Victorian Legal Services Board v Berry [2024] VSC 778

There must be some serious misconduct for a solicitor to have their name removed from the Roll of Legal Practitioners held by the Supreme Court.

In this case, Ms Elise Berry's conduct as a family lawyer was so egregious that in 2022 her licence to practice law was cancelled.

She took no notice of that and continued to practice anyway, resulting in proceedings in 2024 to have her name struck from the Roll of Legal Practitioners.

This case looks at only a few examples of Elise Berry's misconduct which included:

a. forging emails, loan agreements, and court orders;

b. lying to her clients and failing to follow instructions; and

c. misappropriating client funds.

Her conduct and commitment to deception was almost too outrageous to believe.

Thank you to Barrister Sarah Carr for this fascinating case recommendation! This case was so mind-blowing to me that I had to share it as soon as I finished editing the episode.

CASE: Moradi v Comcare [2024] FCA 812

Yasmin Moradi was an employee of the Translation Interpretation Service (TIS) within the Department of Home Affairs as a Farsi (Persian) interpreter for periods of various lengths and in different locations.

Moradi's last deployment was cut short one-month early because of the lack of need for Farsi interpreters.

Moradi sought compensation for psychological injuries sustained as a result of the early termination.

Comcare denied liability. Moradi appealed that decision.

CASE: Re Pacella [2019] VSC 170

Some requests, however, can be quite extravagant and outlandish.

Francesco Pacella wanted a family crypt. A large crypt that could fit 20 coffins, to be built in a cemetery in Italy.

He left $200,000 in his Will to be used for this purpose and tasked his nephew Emidio with the job of building the crypt.

Was such a provision legally enforceable?

CASE: R v Thompson, David; R v Thompson, Phillip [2019] NSWSC 1396

WARNING: Disturbing content

If you are responsible for the care of a person and they die because you have failed to provide that care, you may be

This was the charge that was brought against David and Phillip Thompson when their mother died in September 2017.

In 2017, Shirley Thompson was 72 years old and living in an apartment in Western Sydney wit her two sons.

On 23 August, Shirley wasn't speaking, wasn't drinking or eating and had bed sores. Her sons called an ambulance.

Shirley died of sepsis 10 days after she was admitted to hospital.

Her sons were charged with manslaughter by gross criminal negligence.

CASE: Smith v Kenneth [2016] QCA 267

For people familiar with the best Aussie movie of all time - 'The Castle' - you will know that for a lawyer, being called "Dennis Denuto" is most definitely not a compliment.

That is what happened in this case. Solicitor Brett Smith was acting in a family law dispute. The husband on the other side, on several occasions, referred to him as "Dennis Denuto".

Brett took extreme offence and made a claim for damages for defamation.

The judge determined that the insult was defamatory, but that the public awareness of the insult was largely Brett's fault.

Before the defamation proceedings, 3 adults knew of the insult. After the proceedings and all the media attention it garnered.... let's say the proceedings did more damage than the insults did.

CASE: McCarthy v Tye [2017] NSWCA 284

Can a boarder and a housemate make a claim on your estate?

In some circumstances, the answer may be yes.

Peter McCarthy had been a boarder in the house of Diane Green from 2003 to 2014. He paid rent and his own expenses.

After 11 years of living together, they had become close friends and even went on a few holidays together.

After Diane's death in 2014, Peter made an application to receive a substantial part of her estate - mainly the house he was still living in.

He claimed that he was Diane's de facto spouse at the date of her death. Was he? Did he receive some of Diane's estate?