Fisk – Season 2 Episode 1
We enjoyed seeing Kitty Flanagan return to our television screens to portray embattled suburban lawyer, Helen Tudor-Fisk, in the eagerly anticipated return of the series “Fisk” for a second season, airing on the ABC.
In the first episode of Season 2, Lesley Slade, executor of the estate of her late mother, Dorothy, sought Helen’s assistance to defend a dubious claim for provision from Dorothy’s estate by one Keith Budge.
Keith claimed he was the “intimate partner” of his “octogenarian angel” Dorothy but was in fact, as Fisk summed it up, “just some random guy who rents the granny flat out the back and sometimes does the gardens”.
Despite Keith’s claim that he and Dorothy were “soul mates”, she had not provided for him in her will.
No doubt Keith had heard that a deceased person’s spouse is eligible, as of right, to bring a claim seeking provision or further provision from the deceased’s estate. With Dorothy no longer around to say otherwise, Keith decided to portray himself as her grieving spouse and accordingly eligible to seek provision from Dorothy’s estate.
Whilst a legally married spouse can easily prove their relationship, and therefore their eligibility to make a claim, proving the existence of a de facto relationship is a bit more challenging and requires the furnishing of sufficient evidence in relation to a number of relevant factors.
In the context of establishing eligibility to bring a claim for provision from a deceased estate, the courts in NSW have considered that there must be some form of living together in a domestic relationship. Full time co-habitation is not required and nor is there a requirement for the relationship to have endured for a minimum period of time or for there to have been significant contribution.
Other factors that the Court will consider in deciding whether or not a de facto relationship existed in this context include:
• whether there was a sexual relationship;
• whether there was financial dependence;
• the extent (if any) of ownership, acquisition and use of property;
• whether there was a mutual commitment to a shared life;
• reputation and public aspects of the relationship;
• whether there was shared care and support of children; and
• distribution of household chores.
Variations of these requirements apply in other jurisdictions.
Keith’s “evidence” of his relationship with Dorothy consisted of his affidavit exhibiting a photo of a topiary bush in Dorothy’s front garden, which he claimed to have lovingly sculpted in her image to demonstrate his commitment and devotion to her. Photos of toast, honey and crumbs were also exhibited to corroborate Keith’s claim to have regularly shared a bed and leisurely breakfasts with Dorothy.
Fisk was able to expose the lack of truth in Keith’s story when he was unable to accurately describe Dorothy’s bedroom décor because he had never, in fact, set foot inside her house, let alone her bedroom, prompting Fisk to describe his affidavit as fiction and to suggest that he should use it to try to find a book deal.
Helen regarded Keith’s claim as baseless but ultimately recommended that her client should offer Keith a reduced sum to satisfy his “claim”, rather than have the administration of Dorothy’s estate delayed by lengthy and stressful litigation, in tandem with her client’s eventual inheritance being eroded by legal costs.
Lesley Slade’s longing to install a hot tub persuaded her to accept Fisk’s advice!
Whilst Lesley conceded to pay Keith $10,000 from Dorothy’s estate, unfortunately for Keith he was then swiftly evicted when Helen realized that the granny flat he had been renting from Dorothy had been constructed too close to the boundary, requiring it to be immediately demolished.
As much as we were entertained by Fisk’s creative approach to wrapping up this fictional case and enjoyed watching her find a way, yet again, to deliver some practical justice to even things up for her client, we can’t help thinking that, in the real world, Lesley Slade’s interests would have been better served by advice from one of our estate litigation specialists.
Our team has a wealth of experience in acting for both executors and applicants where there are claims made by de facto spouses and if you need advice in this area, now or in the future, we would be pleased to assist you.
We’re looking forward to seeing Helen tackle further legal and life challenges in this evening’s episode.
If you too are a “Fisk” fan, happy viewing and stay tuned for our next insider’s review of Helen’s adventures in the world of succession law.