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1300 COMLAW (266 529)

02 4704 9991

Suite 11, 354-360 High Street, Penrith NSW 2750
PO Box 1835 PENRITH NSW 2751

Court

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Problems Arising Out Of Disputed Wills

The legal area of Wills and Estates is fraught with difficulty. The main reason is that disputes often arise as to the contents of deceased persons’ Wills, and the people who wrote the Wills are not around to explain what they intended and the reasons why they did what they did when drafting their Will.

The most common forms of dispute regarding Wills arise out of the following:

  1. Family provision claims – also known as contesting a person’s Will.
  2. Testamentary capacity cases – where someone is arguing that the deceased lacked the mental capacity to make a Will.
  3. Constructions suits – where the terms of the Will are ambiguous or confusing and the Court’s assistance is required to interpret them.

Another common type of dispute that arises in the context of deceased Estates is that of constructive trust or resulting trust. This usually occurs where a deceased person has promised someone a portion of their assets, sometimes in return for things like domestic assistance and care, but this promise is not contained in their Will and therefore there is no record of it. The law says that people who have been made such promises have the right to enforce these promises if they can be proven.

This week we attended a mediation in a deceased Estate matter where we were able to secure an award for our client in the hundreds of thousands of dollars. This dispute involved a deceased person who left a Will leaving his entire Estate to a friend and some charities and leaving nothing to his three adult sons.

If the matter had have proceeded to a hearing in the Supreme Court of NSW because no settlement could be reached, the legal fees would have most likely exceeded $250,000. This is money that would have been taken directly from the pockets of beneficiaries to pay for Lawyers and Barristers.

We were able to assist in avoiding these costs and putting more money in our client’s pocket by coming to a mutually beneficial settlement.

These types of family disputes are not often motivated simply by financial gain. There are many personal and emotional issues attached that it takes an experienced Lawyer to navigate.

Contact us today if you are involved in a some type of Estate dispute and we will tell you if we can help you free of charge.

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Eleven New Magistrates for NSW

The NSW Attorney General last week announced that the NSW Local Court is going to receive a much needed injection of resources with the appointment of 11 new Magistrates in 2017.

This is critically important for the Local Court which hears a range of different matters in different jurisdictions.

The Local Court is typically broken up into two arms; criminal and civil.

The criminal arm of the Local Court deals with people who have been charged with offences such as traffic offences including speeding, drink driving and licence offences, as well as criminal offences such as assault, domestic violence matters, theft and a myriad of other offences.

The civil arm of the Local Court deals with civil disputes, usually between people or corporate entities who are involved with some kind of dispute over money. This can include everything from contract disputes to unpaid employment entitlements and other debt enforcement action.

The role of the Magistrate is to hear the evidence put before the Court and make a determination as to the guilt/liability of the accused and decide on an appropriate penalty. In Australia we have a combination of statute (legislation) and common law (cases that set legal precedents) that guide a Magistrate as to how they should analyse the facts before them and decide a person’s punishment. In the civil context the focus is not so much on punishment, but rather on remedying the loss suffered by the aggrieved party. This is typically achieved by ordering the offending party to pay a sum of money to the party whom the Magistrate determines has won the case.

Of the 11 new Magistrates being appointed, seven are reported to specialise in criminal law and four are reported to specialise in civil law. They come from a range of different backgrounds including private legal practice, corporate legal practice, and the Bar.

The Local Court processes thousands of matters and hosts thousands of people every week.

The addition of the new Magistrates will improve efficiency in the Local Court, meaning that civil and criminal matters can be dealt with to completion more quickly. The obvious benefit of this is that it reduces the burden on victims, defendants and witnesses, as well as the police force.

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Australia’s Court System

Australia has a Common Law legal system which means that our laws are determined by a combination of Statute (Legislation) and Case Law whereby decisions made by Judges in legal cases are used as a guide to determine what the outcome should be in subsequent cases.

From time to time we see Judges interpret these cases differently and as a result of this our legal system is constantly evolving.

Australia has a number of different Courts and Tribunals, however the Court system can be broken into four main tiers.

The Local Court

The Local Court typically deals with relatively minor criminal offences such as traffic offences, assault, some drug offences at the less serious end of the scale and other offences like this. The Local Court also has jurisdiction to hear minor civil disputes. Local Courts are typically overseen by a Magistrate.

The District Court

The District Court typically deals with more serious criminal offences such as armed robbery, serious drugs cases, serious sex offences and offences that result in the death of a person.

It is important to remember that there is quite a lot of overlap with different categories of offences between the Local Court and the District Court. The Court that will deal with these types of matters depends on the individual circumstances of each case.

The Supreme Court

The Supreme Court is the highest Court in any of Australia’s States or Territories. The Supreme Court deals with a range of serious cases ranging from contested Wills and Estates to large commercial disputes, serious criminal trials and is also home to the Court of Criminal Appeal.

Appeals

Australia has an appellant Court system. This means that if a person believes they have been unfairly treated in a Court case or the Judge may have made a mistake in determining the outcome of their case, this can be appealed to a higher Court. For example, a decision of the Local Court can be appealed to the District Court, a decision of the District Court can be referred to the Supreme Court/Court of Criminal Appeal and if all else fails, some matters can be determined by Australia’s highest Court, the High Court of Australia in Canberra.

The High Court

The High Court is the highest Court in the country. There are a very specific category of cases that may be referred to the High Court and in each case an Application must be made to the High Court as to whether or not the Court is willing to determine the matter.
Australia also has a range of other Federal Courts, Tribunals, Family Courts and Children’s Courts, all designed to address the different legal jurisdictions in our country (e.g. state vs federal) and the needs of different types of people who come into contact with our legal system (e.g. children and minors vs adults).