The ongoing saga of litigation concerning the famed artist, the late John Olsen has taken another new turn this week with the artist launching another legal action to have his estranged stepdaughter to give him (his estate) the money from the sale of Southern Highlands estate reportedly worth over two million dollars.
Where Did this All Estate Litigation Start?
Basically, the property was transferred to Karen Mentink (the stepdaughter) by her mother, the deceased, Katherine Howard-Olsen.
Late last year, Karen Mentink lost her original legal battle when the New South Wales Supreme Court rules against her asserting that she used “undue influence” to coerce her terminally-ill mother to gift the Highlands estate to her.
‘The defendant, knowing of her mother’s illness, anxiety, change in behaviour, change in mood either was actively involved in or stood by and did nothing as she accepted an extraordinarily large gift,’ he said.
‘It was an act of self-indulgence, somewhat callous and extraordinarily selfish on the part of the defendant.
‘The defendant took no opportunity to suggest her mother seek independent advice, nor speak to anyone else in the family about such a large gift.’
What Has Since Happened in this Estate Litigation?
Ms Mentink is currently appealing that decision, while also launching a further, but separate action off the back of the late John Olsen’s removal of her as a beneficiary of his will in 2017.
More specifically, Mentink wants a quarter of the value of Olsen’s artworks, his company and numerous properties.
These types of claims of course are becoming very common, with a spate of recent high-profile estate disputes ending up in court, most notably the estates of Bob Hawke, Richie Benaud and Nevelle Wran.
What is the Relevant Estate Litigation Laws?
In New South Wales, like every other state of Australia, spouses and children (including step-children) are eligible to make a claim for provision of the deceased’s estate.
Under section 57 of the Succession Act 2006 (NSW), the persons who are eligible to make a claim are:
- Surviving husband or wife of the deceased person;
- A person who was living in a de-facto relationship with the deceased person;
- A child of a deceased person, including an adopted child;
- A former divorced husband or wife of the deceased;
A person who was:
- Wholly or partly dependent on the deceased person; or
- A member of the household of the deceased person.
- A person who was in a close relationship with the deceased person.
However, while there are inherent similarities across different states in Australia, when it comes to actual estate litigation, New South Wales has typically the most generous provisions.
How this often plays out, is that the court in circumstances where there is insufficient value or funds in the estate, can extend their reach to those assets that have been gifted, clawing them in for less than market-value.
Who is Paying for All of This Estate Litigation?
Courts increasingly are stressing the importance of proportionality when it comes to the costs of deceased estate litigation. In other words, the cost of estate litigation needs to be balanced by the ultimate worth of the estate, because in more cases than not, the litigation costs are pulled from the estate, regardless of who wins and who loses. In other words, typically it is the case that the unsuccessful applicant of a family provision application will have no costs order made against them.
Moreover, lawyers who do this type of litigation will normally offer a no win no fee arrangement to the applicant.
Take Home Message
There’s two messages for two distinctly different audiences.
If you have a relatively complex family, make sure that your estate planning has been pulled together in association with a lawyer who is an Accredited Estate Planning Specialist. By doing this, you will significantly minimise the risk of your estate being successfully disputed.
Conversely, if you are an eligible person who believes that you have not been adequately provided for in a Will, there are very strict time limits apply. Similarly, when it comes to this type of legal action, consult with a lawyer who is an Accredited Estate Litigation Specialist.
Accredited Specialists are lawyers who their relevant law society hold up as being the experts in their relevant disciplines. They’re highly experienced and they have undertaken additional complex study that the far majority of lawyers who attempt, fail. Simply put, Accredited Specialists are in the top 2 – 5% of lawyers in Australia.
