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Private Client Services Bulletin

The importance of being honest with the Court in a Family Estate Dispute

Brimelow v Alampi

In late-2014, the Victorian government radically overhauled the law relating to claims for provision from a deceased Estate. The new legislation included some adjustment of language concerning adult children, but the legal profession generally expected the rights of adult children to remain largely unchanged.

The changes restricted the classes of people who could make a claim so that eligible claimants had to fit within a defined category. The changes apply only to estates where the deceased died after 1 January 2015.

Her Honour Justice McMillan of the Supreme Court of Victoria recently handed down her first decision in relation to a claim for further provision under the new laws. Brimelow v Alampi, concerned a claim by an adult daughter. As a child, she was eligible under both the new and the old laws. The Court found that their main consideration remained whether “adequate” provision had been made for the Plaintiff under the deceased’s Will.

This case also highlighted the importance of being honest with the Court and in all other facets of your life: the Executor (and brother of the plaintiff) said in court that he was separated from his wife while living under the same room.  His wife claimed a sole parent pension for their children for a period of 10 years on the basis that they were separated and he did not contribute financially to the children. However, that they had two children aged 18 months and 9 years. Evidence was also provided during the proceeding that he had been paid cash for his work as a plasterer. The Court found that he was not a credible witness and alerted the ATO, the Minister of the Department of Human Services and the Deputy Commissioner of Taxation.

This case provides reassurance to potential plaintiffs who are adult children that the new laws have not limited their right to claim from a parent’s estate.  The case also stands as a warning concerning credibility of witnesses and the dangers of tax or social security non-compliance.

 

For further information please contact Daniel Kelliher or Daniella Trimboli.