The Tragedy is Not Just Death, But the Various Litigation Which Can Flow After Death


HomeNewsThe Tragedy is Not Just Death, But the Various Litigation Which Can Flow After Death

The Tragedy is Not Just Death, But the Various Litigation Which Can Flow After Death

Sometimes Lawyers Come Across Cases Which Are Just Plain Tragedies – Which End of Revealing Just a Small Window Into What a Family Is Going Through

Pause for a moment and think about the facts the relevant family members were living amongst, part of which were set out in the decision of Saleeba and Moon, recently decided by Judge Aldridge in the Family Court Australia’s Sydney registry.

The unhappy facts:

  • After a long marriage of 19 years, Mr Saleeba and Ms Lambros separated and divorced at the ages of 42 (Wife) and 44 (Husband).
  • Their children were then aged about 14 yrs, 12 yrs and 10 yrs.
  • At separation, all three children lived with the Wife, but the Wife’s relationship with the elder children deteriorated and they commenced living with the Husband.
  • In July, 2012, the parties resolved their property settlement matter by consent and Orders were pronounced finalising their financial affairs by a Federal Magistrate.
  • Each spouse retained real estate and assets, but the Husband was to make payments by installments so as the Wife ultimately received another $140,000 from the Husband. The Husband also retained a business operated by a company associated with him but was required to sell down his interest in luxury cars and discharge debts.
  • The Wife died in February 2014 – and unhappily, three children lost their mum. More particularly, the youngest child lost a parent carer/custodial parent.
  • Reading the Will is quite tragic, because the Wife set out that she was leaving her entire estate to the youngest child, given that (she recorded) “I have not bequeathed any part of my estate to my [elder] children as they chose to shut me out of their lives since December, 2010 for reasons I cannot understand or accept. They have hurt me severely and have treated me with unspeakable contempt and disrespect. I believe they will be sufficiently provided for by their father both during his lifetime and upon his death.”
  • Pausing there, at the time of the Mother’s death, the elder children would have been aged about 18 yrs and 16 yrs of age – the point being that their emotional maturity is clearly not fully developed.
  • Regardless, they are now pitted in conflict with their younger sibling who will be suffering significant grief in any event, because the youngest sibling received the entire estate comprising at least hundreds of thousands of dollars or more.
  • The Father asked the Family Court to rule that the Order which resolved their property and financial outcomes should be reconsidered and therefore set aside, given the changed circumstances, which he identified as being that after the Wife’s death, all children now were residing with him and he would suffer financial hardship.
  • The Court did not accept that he would suffer hardship and the Wife’s death alone was not an extraordinary circumstances, considering the death of a spouse after property matters conclude is possible as being one of the vicissitudes of life.
  • The Court noted that the elder children were maintaining proceedings in the Supreme Court of NSW asking for a share of their late Mother’s estate.
  • Ultimately, the Husband failed, but not before the Court expressed a view that he was “fast and loose” with the truth in the proceedings before it – findings which were made after carefully considering his reasonably luxuriant lifestyle, overseas travel, contracting to buy a $4.4m home, remarrying and buying expensive jewellery.
  • The Wife’s death was not enough and he was not suffering hardship such that the Court could be satisfied of extraordinary circumstances.

The mess left behind is plainly that the Wife’s family and friends defended the Will, taking on all of the views and the idiosyncrasies of the Wife, which perpetuates negative feelings and relationships between the Husband and elder children and the Wife’s supporters.

The youngest child is in conflict with the elder siblings and sits with a large nest egg unshared with the elder siblings and the Husband, who plainly contributed to the building up/accumulation of that asset pool during his lifetime.

The work briefed to lawyers to handle the family law application and the estate claims would be likely to amount to a figure in the hundreds of thousands of dollars.

It would have been nice to have seen, but then we could not have read the case report as the proceedings would not have eventuated, a well-positioned family member or friend, see that all sides to this tragedy could benefit by a negotiated outcome.

It would have been nice to see some of the financial obligations on the Father relaxed, as clearly, and after all, he’s going to be responsible for the three children without assistance from the other parent and having recently transferred a sum likely worth more than half of the asset pool to the Wife.

It would have been nice to see the Wife’s family have a quiet think about the maturity levels and experiences of teenaged children going through divorce in terms of proposing reasonable settlements to the elder children out of their Mother’s estate to ensure that they pursued opportunities their Mother had had planned for them (eg home ownership, relief from the burdens of HECS or HELP debts after university, 21st birthday presents, 1st cars etc.

It would similarly have been nice to see the siblings free of issues which could create jealousy and animosity between them by an evening up or appropriate change to the 0/0/100 proportionate split of assets between them.

It was clearly an opportunity for the Wife’s family and friends to reconnect and remain connected with the family.

What can be learned from this?

There is a time and place to take a hard-line in litigation, but examples such as this is not one.

Executors of Estates, need to take a good, long and hard look at themselves and think out loud whether they are carrying on their own agenda, an inappropriate agenda of the Deceased or whether they can actually objectively think on the real issues and make decisions which help healing and resolution as opposed to exacerbating conflicts and running up legal costs.

Ultimately, there will be a major amount of money spent on lawyers in these various Court proceedings. My estimate would be circa $200,000.

That didn’t need to happen – and certainly, it appears to me, no matter what now happens, at least three (3) people – Dad and the two elder children – will be experiencing negative and unhealthy sentiments for the duration of their lifetimes, whenever they are asked to think about, reminded of or topically asked about, their Mother and what became of her.

Thanks for reading.