Key Practice Areas
FPA Dismissed By Judge Without Trial
Case Reference: 140519
Type of Case: Deceased Estate Litigation – FPA Provision
The Situation: It is very rare to have a case dismissed by a judge without even having a chance to go to trial. Often this is threatened by lawyers, but rarely does it happen. On 29 April 2014, our Russell Leneham, Accredited Specialist in Wills & Estates, appeared in the Supreme Court at Brisbane to argue for summary judgment in a Family Provision Application (commonly known by lawyers as an FPA). We acted for the executors – a brother and sister whose father had died leaving a will that gave his modestly-sized estate in equal shares to his seven adult children.
Two of the children were not satisfied with the administration efforts of the executors, so they sought further provision from the estate. In “without prejudice” correspondence (that could not be used in evidence), the applicants said that they were not really interested in getting a greater share of the estate, they just wanted the executors to do a better job of chasing up details of loans allegedly owed to their father by some of their siblings. So they really should not have filed an FPA at all. Russell Leneham submitted to the court that the applicants’ affidavits did not show sufficient evidence to give them any real chance of succeeding in their claims. (This was after the applicants had sought and obtained an adjournment of almost four weeks so they could spruce up their affidavits.)
The Result: The judge agreed and gave summary judgment for our clients, and ordered that the applicants pay the executors’ costs. Reflecting on the outcome, Russell said “I am so very pleased to get good results for our clients, especially in such a rare manner. This result means that my clients do not have to deal with a long, drawn-out court case, or even mediation. The costs of fighting the case have been kept to a bare minimum, and the applicants will have to pay a large portion of those costs, as well as paying their own costs.”
* Names have been changed for confidentiality. However, some cases appear on public records such as court reports on the internet. As every case is different, the cases reported here cannot be taken as an indication of a similar outcome being likely in your case, and these reports are not to be taken as legal advice about your particular situation.