Boyter v Lepre; Estate of Umberto Lepre

CITATION: Boyter v Lepre; Estate of Umberto Lepre [2001] NSWSC 127

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 108604/2000

HEARING DATE(S): 05/03/2001

JUDGMENT DATE:
5 March 2001

PARTIES :

Lynne Dorothy Boyter (P1)
David Thomas Howe (P2)
Anella Rose Lepre (D)

JUDGMENT OF: Young J

COUNSEL : R May (Solicitor)(P)
P Hallen SC (D)

SOLICITORS: Kingston Swift (P)
J P Gould (D)

CATCHWORDS: SUCCESSION [335]- Family Provision- Application for release- What evidence required.

LEGISLATION CITED: Family Provision Act 1982, s 31

DECISION: Orders made.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

MONDAY 5 MARCH 2001

108604/00 - BOYTER v LEPRE; ESTATE OF UMBERTO LEPRE

JUDGMENT

1 HIS HONOUR: This is an application in the probate list to approve a release under s 31 of the Family Provision Act, 1982.

2 Last week I was not happy with the evidence that the plaintiffs, in giving the release, had obtained proper advice. Today the evidence is really not much better.

3 The evidence essentially is from the plaintiffs and the plaintiffs’ solicitor that the plaintiffs have read the terms of settlement; that prior to signing the terms of settlement they obtained legal advice; they understood they were releasing the estate from further claim; that they understood the written nature of the terms of settlement; and that they had signed the document accordingly.

4 It is becoming the habit of seeking a s 31 release in every case. It is very often not necessary and it is only a matter of more abundant caution. However, the Court is not, without proper evidence, going to lend itself to merely signing off on deals which have been made. The Court ordinarily accepts if it is to be asked to give a release under s 31 and counsel has been involved in the matter, for the counsel to tell the judge or master that he or she is satisfied that it is a proper settlement and that the client has been fully advised.

5 If a solicitor is involved who is not one who regularly appears before the Court (so that the Court knows the extent to which that solicitor understands the law of Family Provision), then it is usually insufficient merely to set out some formula such as in the present case "I have read the terms of settlement to the client and explained them to him or her". The solicitor should set out in detail how it was the solicitor formed the view that the client understood the terms. A formula is not enough, facts are needed.

6 However, in the present case it would be wasting the parties' money to spend too much time on the matter, so I will sign off on this release a little against my better judgment.

7 I make orders in accordance with the short minutes initialled by me dated and placed with the papers.

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Last Modified: 03/08/2001

CaseChat Overview and Summary

In the matter of Boyter v Lepre; Estate of Umberto Lepre, the deceased, Umberto Lepre, passed away leaving behind a will which provided for his estate to be distributed among his children. However, the applicant, Boyter, who is one of the deceased's daughters, sought to challenge the will on the grounds that it did not make adequate provision for her maintenance, support, and advancement. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was to determine what standard of evidence was required for Boyter to successfully challenge the will under the Family Provision Act. The court had to consider whether Boyter needed to provide clear and convincing evidence or if a balance of probabilities was sufficient to warrant a release of the estate.

The court examined the relevant sections of the Family Provision Act and previous case law to ascertain the appropriate standard of proof. It was noted that while the Act does not explicitly state the standard of proof required, it is generally accepted that the applicant must prove their case on the balance of probabilities. The court held that the onus is on the applicant to demonstrate that the will does not make reasonable financial provision for them. The court considered that the standard of proof required should not be as high as in criminal cases but should still be a rigorous standard to ensure that the applicant's claims are substantiated. The court concluded that the balance of probabilities was the appropriate standard in such cases.

Based on its reasoning, the court determined that Boyter had not provided sufficient evidence to meet the balance of probabilities standard. Therefore, the application for the release of the estate was dismissed. The court emphasised that the evidence must be compelling and capable of satisfying a reasonable person that the applicant's claims are true. The final orders of the court were that Boyter's application be dismissed, and the estate be distributed according to the terms of the will.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Boyter v Lepre; Estate of Umberto Lepre [2001] NSWSC 127
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 108604/2000
HEARING DATE(S):	05/03/2001
JUDGMENT DATE:	5 March 2001
PARTIES :	Lynne Dorothy Boyter (P1) David Thomas Howe (P2) Anella Rose Lepre (D)
JUDGMENT OF:	Young J

COUNSEL :	R May (Solicitor)(P) P Hallen SC (D)
SOLICITORS:	Kingston Swift (P) J P Gould (D)
CATCHWORDS:	SUCCESSION [335]- Family Provision- Application for release- What evidence required.
LEGISLATION CITED:	Family Provision Act 1982, s 31
DECISION:	Orders made.