Equity in Australian estate litigation

Hamilton, Barbara & Cockburn, Tina (2014) Equity in Australian estate litigation. Trusts and Trustees, 20(5), pp. 437-451.

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Abstract

Equitable claims are increasingly arising in Australian estate litigation, particularly in conjunction with family provision applications. Since the leading decision in Bridgewater v Leahy, in addition to undue influence and unconscionable bargain claims, actions based on equitable estoppel, constructive and resulting trusts, breach of fiduciary duty, and breach of legislative duties that mirror equitable obligations are increasingly being brought in contemporary estate litigation. Such litigation often raises challenging issues for claimants, including evidentiary hurdles and allegations of undue delay, especially when claims are made post-mortem in relation to inter vivos dealings with property. Accordingly, solicitors need to ensure that they fully understand the nature and potential application of equitable claims in estate litigation, or face the prospect of incurring liability to clients for professional negligence. This article explores recent trends in Australian estate litigation involving equitable claims.

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ID Code: 76115
Item Type: Journal Article
Refereed: Yes
Keywords: trusts , equity , estate litigation , fiduciary duty, undue influence
DOI: 10.1093/tandt/ttu018
ISSN: 1363-1780
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Equity and Trusts Law (180112)
Divisions: Current > Research Centres > Centre for Health Research
Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2014 The Author
Deposited On: 10 Sep 2014 22:50
Last Modified: 11 Sep 2014 21:16

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