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Key decisions

  • Cowper-Smith v Morgan, [2017] SCC 61
  • Lemon v Mead [2017] WASCA 215
  • Smoje v Forrester [2017] NSWCA 308
  • Lodin v Lodin [2017] NSWCA 327
  • Spata v Tumino [2018] NSWCA 17
  • Stojic v Stojic [2018] NSWCA 28
  • DJ Singh v DH Singh [2018] NSWCA 30
  • In the Will of Thomas Henry Finch (dec’d) [2018] QSC 16
  • The Public Trustee of Queensland v Neary [2018] QSC 9
  • Stevens v Turner [2018] SASC 7
  • Longmore v Longmore; The Estate of Jean Longmore [2018] NSWSC 90
  • Islik; Kimmer v Kaynak [2018] VSC 59
  • The Estate of Mark Edward Tighe [2018] NSWSC 163

Court orders executor to distribute part of estate en specie

As part of an arrangement between siblings to provide care for an aging mother, the daughter Gloria assured her brother Max that he could acquire her share of the mother’s property after her mother’s death. Unbeknown to Max, the mother had transferred her property into joint ownership with Gloria. After the mother’s death the transfer was set aside for undue influence. Proprietary estoppel was established, although Gloria didn’t own a share of the property when she made the promise. However, Gloria was her mother’s executor. Effect could only be given to Gloria’s promise if, contrary to Gloria’s wish to sell the property, she could be compelled to distribute the property en specie. The Supreme Court of Canada decided that Gloria’s conflict of interest (as executor and beneficiary) and bad faith constituted a breach of fiduciary duty which enlivened the court’s power to direct Gloria to exercise her discretion as executor to distribute the estate en specie (Cowper-Smith v Morgan, 2017 SCC 61, at [39]-[42]).

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