Attwood Marshall Lawyers Estate Litigation Special Counsel April Kennedy recently joined Robyn Hyland on Radio 4CRB to discuss a high-profile case involving a dispute between two adult children fighting over their late mother’s estate. This case raised a pertinent question; can statements made or videos posted on social media be used to resolve legal conflicts outside the traditional courtroom setting? Here, we explore the complexities of family disputes, examine what constitutes a genuine offer, and discuss the importance of exercising caution when posting on social media while involved in a legal dispute.
This intriguing case involves David McBride, a former military lawyer who is facing criminal charges for whistleblowing against the Australian Defence Force, and his sister, Louise McBride, a Sydney-based barrister.
In November 2023, David pleaded guilty to releasing classified information to ABC journalists. This information was used to launch and publish an investigative series exposing war crimes in Afghanistan. He is currently awaiting sentencing.
Highly active on social media, David utilised his platform to appeal to the public for financial assistance with his legal battle and to help his family. He has established two GoFundMe pages – one to cover family living expenses and another to help him pay his criminal case fees.
Despite the intrigue surrounding David’s legal proceedings, this article focuses on a dispute that arose between David and his sister, Louise, regarding their late mother’s estate.
Patricia McBride, David and Louise’s mother, died on 15 November 2021, leaving behind a Will and two codicils that gifted most of her estate to her daughter, Louise. The estate primarily consisted of a 2-million-dollar apartment in Neutral Bay, where Louise currently lives.
David was bequeathed some personal items and $10,000. On 9 November 2022, David filed a family provision claim against his mother’s estate, seeking further provision.
That litigation remains ongoing. However, in October 2023, Louise filed a motion – a supplementary application within the main claim – arguing that David had made an offer to settle the claim on social media and that she accepted the offer, hoping to put an end to the legal dispute over the estate.
This argument stemmed from David releasing a video on his social media accounts.
The video was distributed on YouTube, Instagram, TikTok, and several other sites, and David has a combined audience of around 62,000 people. Louise’s daughter saw the video and notified her mother.
Louise argued that the video constituted a genuine offer to settle the litigation and that she accepted the offer.
What was in the video?
In the video, which David posted on 17 August 2023, titled “Feeling a bit down this morning…”, David discussed his mother’s death which happened several years earlier and the fact that his mother had left the majority of her 2-million-dollar estate to his sister.
He discussed his need for financial assistance for his criminal case and his claim for further provision from his mother’s estate, which he is entitled to apply for under the law.
David mentioned that further provision could be “as little as $10,000; it could be $1,000”.
He talked about some expert evidence tendered that could disentitle him from his DVA pension and his frustrations around that.
David mentions that it has nothing to do with the case, and that the result could be that it would cause him to lose his pension which would put him under further financial strain. Ultimately, this would leave him with increased financial need, meaning that he would “need more money out of the Will because it’s all on who’s got the greatest need,” according to David’s statements in his video.
The video is at the heart of Louise’s motion to try to settle David’s family provision claim at the earliest opportunity.
Did the court accept the video as a genuine offer to settle the family provision claim?
The court acknowledged that an offer to settle legal proceedings could be made using social media; however, in this case, the court did not accept that David’s video constituted a genuine offer.
To support her argument, Louise referenced other case studies, including an example related to American rapper, singer, and producer Kanye West.
In 2016, Kanye West announced that his forthcoming album (Life of Pablo) would only be available on a particular streaming platform (Tidal). When the album was released to other platforms, consumers complained that they had purchased subscriptions to Tidal because they were under the impression that the album would only be available to access on the sole platform. A class action lawsuit was ultimately settled.
The distinction between the Kanye West case and David and Louise’s dispute, and the court’s view on whether an offer was made, was that Kanye West was explicit in saying his album would only be available on Tidal, which was a clear offer or inducement to the public to subscribe to Tidal. No legal decision was ever made because of the settlement.
In general, to create a legally binding contract, a genuine offer must encompass the following key elements:
- Offer – The offer must be communicated to the person accepting it;
- Acceptance – The offer needs to be in clear and concise terms, capable of being accepted;
- Consideration – The offer needs to specify a value (i.e. settlement sum);
- Intention to create a binding relationship – the parties must have intended for the agreement to be legally binding.
The court asked Louise to identify the words that she maintained constituted an offer of settlement. She responded that there were no specific words but that the offer could be discerned from the whole of the video. She referred to precedent cases to support her submission that an offer can be inferred from the party’s conduct, in how they acted and what they said and did towards each other.
In David’s case, the court noted that any objective assessment of what was said in the video by David could not necessarily be seen as anything other than a prediction as to the outcome of his civil case rather than a genuine offer being made.
It’s important to note that David distributed the video to a broad audience on social media and did not directly send it to his sister.
Although the court accepts that it is possible to use social media to make an offer, in this case, the main factors which motivated the court’s decision were that:
- There were no specific words used in the video which might be described as conveying an offer;
- There is no overall message that can somehow be discerned from the whole of the video to suggest an offer of settlement was being made;
- There is no conduct, either before or after the video was posted, to suggest David was making an offer, nor was there any history of dealings from which the making of an offer might be inferred;
- If the words were an offer, it would be a strange offer in that it is an offer to accept between $1,000 and $10,000. The court could not see the reference to $1,000 and $10,000 as going beyond a prediction of what the outcome of the case might be, and
- There was no consideration of costs, bearing in mind that the Succession Act proceedings were underway and the purpose of making the offer was to obtain funds for the criminal proceedings. Even at $10,000, one can hardly imagine a net result favourable for this purpose.
The judge rejected the motion and ruled that the words in the video were a prediction of what the outcome of the civil case might be, rather than an offer to settle, and ordered that Louise pay David’s costs of the motion.
With the motion denied, the family provision claim will continue and has yet to be settled at the time of writing this article.
What could happen to David’s family provision claim if he goes to jail?
Having a criminal record is not necessarily a decisive factor when it comes to seeking further provision from an estate; however, it can fall under “any other matter the court considers relevant”. In family provision claims, this exercise is discretionary.
A criminal history alone does not automatically disqualify a person from contesting a Will. Each case is assessed based on its unique circumstances and merit.
In certain instances, a criminal history may hurt someone’s ability to claim further provision, and may, in some circumstances, constitute conduct that would disentitle them from receiving any provision from the estate.
Ultimately, the outcome depends on each case’s specific facts; in David’s case, only time will tell.
Steer clear of discussing legal proceedings on social media
Although, in this case, the video was not used to settle the family provision claim, this case serves as an excellent reminder to think twice before posting on social media, especially if you are involved in a legal dispute! You never know how it may be used or interpreted.
Informal language and lack of context can lead to misunderstandings and misinterpretations.
It’s crucial to be mindful of the legal implications of what you post online.
Attwood Marshall Lawyers – experts in estate litigation
Disputes over Wills and estates can be highly complex to navigate. Finding the right lawyer who has a comprehensive understanding of succession law, can help you carry the burden and reduce conflict among family members as much as possible to achieve your desired result if you intend to contest a Will.
Our dedicated estate litigation lawyers practice exclusively in elder law and inheritance disputes and can guide you through the legal process with the utmost care.
For specialist advice related to estate disputes or contesting Wills, please reach out to our Estate Litigation Department Manager, Amanda Heather, on her direct line at 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 to make an appointment with one of our experienced estate litigation lawyers.
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