Just in Case Law Tanya Chapman

Nahata v Robertson [2023] NSWSC 642

The plaintiffs (Himanshu Nahata and Priyanka Jain) wanted to construct a duplex on their land. To do so, they needed to put in storm water drainage, that would have to go through their neighbour's land.

The neighbours, Russell & Stana Robertson, did not agree to grant an easement over their land. Among their reasons for refusing was that the construction works would dig up and destroy existing concrete paths, shed and retaining wall.

The plaintiffs applied to the Court for the easement. Were they successful?

Special appearance from Evie Chapman who found this case to be very boring.

There is a temptation to use the latest technology or to add a more personal touch to your final farewell to the world, by doing a video Will.

This episode we look at two cases that demonstrate why you should resist the temptation.



Re Marian Moyne Demowbray

Marian was in her hospital bed when she asked her two friends to help her film a video Will. The next day a nurse suggested that she do a written Will with a solicitor, but Marian thought it would be too expensive.

After Marian's death, there was an expensive Court hearing to determine whether the informal video Will would be recognised.



Estate of Peter Anthony Pitman [2018] WASC 237

After Peter Pitman's death, 4 video recordings were found on his computer. Peter started each recording with "This is a preamble to my last Will and testament" but each recording was not completed.

The question for the Court was did Peter intend any of these 4 short recordings to be his final Will. They also had the further challenge that the original recordings were no longer available and for those they had the audio and visual were out of sync.

Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3

Voice actors: Liam Schofield and Shay Riley-Lewis (solicitors at Baker Love Lawyers)

George Sideris had been a solicitor for more than 30 years when, in 2023, the Law Society of NSW applied for the removal of his practicing certificate.

He was accused of professional misconduct in persistently communicating directly with the opposing side (the Salvation Army) instead of going through their solicitor and also being discourteous in his communications.

Sideris argued that he couldn't have engaged in professional misconduct because he wasn't acting as a solicitor at the time he was assisting his mother-in-law in her negotiations with the Salvation Army.

What makes this case so interesting was the correspondence that had been sent by Sideris, all of which were in evidence.

Colin Olsen died at the 87 years. He was survived by his wife of 56 years, Beverley, and their three children. He also had a child from a previous relationship, Craig Olsen.

Colin's Will left his entire estate to Beverley.

Craig made an application for provision from the estate.

What makes this case particularly interesting was that Craig was a successful solicitor and the Court was critical of his self-drafted affidavits. And also the reason that Craig was seeking provision from his late father's estate - he said he needed the funds to do renovation on 2 of his wife's 5 properties.

The State of Western Australia v Mack [2012] WASC 127

WARNING: This episode involves violence and disturbing content.

In 2012, Brent Mack was found guilty of the murder of his mother Ah Bee Mack (known as Pauline). Brent was to inherit from his mother's estate however, the forfeiture rule provides that a person convicted of murder cannot inherit from the person they have killed.

Brent's brother Adrian was to inherit all of their late mother's estate. But he died before he received his inheritance and Brent was to inherit half of Adrian's estate. This would indirectly result in Brent receiving half of his late mother's estate, thereby benefiting from his crime.

That is, unless the forfeiture rule could be extended to cover indirect inheritance.

Lucas v Salman [2022] NSWSC 1301

It was a modern love story. George and Jill met in 1999 and fell in love. They each had children from previous relationships. George had two children (Paul and Joanne) and Jill had two children (Paul and Karl).

Jill died in February 2016 and her estate, including the matrimonial home, were inherited by George.

After Jill's death, George made a Will which would leave his estate equally to his two children and his two stepsons.

But only five months after Jill's death, George met Jodie on an online dating website and fell in love again. He changed his Will to make no provision for his stepsons.

After George's death, both of the stepsons applied for provision from his estate. What obligation did George have to make provision for his stepsons in his Will?