Since the first introduction of Family Maintenance legislation in Queensland, the law has evolved significantly. In two relatively recent decisions of the High Court (
Singer v Berghouse
(1994) 181 CLR 201 and
Vigolo v Bostin
(2005) 221 CLR 191) the court has clearly set out the principles to be applied in such matters (eg the two stage test in
Singer
and the relevance of moral issues in
Vigolo
).
The real issue to be faced, in either bringing an application or by an estate in deciding to defend an application, lies in an understanding of what the current trends are as disclosed in recent actual decisions of the courts.
The High Court authorities, and for that matter Queensland and other State authorities, are all peppered with such phrases as "... in all the relevant circumstances ...", "proper", "adequate", "moral duty" and "moral claim" - phrases and words which are inevitably subjective. It is for this reason a good understanding of current trends in dealing with applications by the courts is essential to the conduct on either side of such litigation.
Also very relevant to any such consideration are the ongoing attitudes of the courts to such issues as costs, applications in small and even moderate estates and the issue of strike-out applications.
Finally, all practitioners should be aware of the various legitimate means of taking prior steps to avoid or at least minimise the risks to an estate from a potential claim. The ethical position of a practitioner of course, is extremely relevant to these considerations.
In this seminar we will examine the present position, including the following:
-
The basic principles
-
Recent Queensland decisions
-
How would a court be likely to approach a claim in a small or even moderate estate?
-
Cost issues
-
What legitimate means are still available to protect an estate from a potential claim?
-
A practitioner’s ethical position both in relation to protecting an estate and commencing and defending an application?
