The following is taken from some recently decided cases. It does not set out everything referred to in the cases, but highlights some useful points. It is for information only and is not to be taken as legal advice.
Defacto succeeds in claim and receives $825K
Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse) [2011] NSWSC 635
Brief facts: The deceased’s daughter, step-daughter grandchildren and step – grandchildren were beneficiaries under the will, but no provision had been made for the Plaintiff in the proceedings, who claimed she had been in a defacto relationship with the deceased for 16 years. The Plaintiff made an application for provision out of the deceased estate. A former wife of the deceased also made an application in separate proceedings for provision out of the estate. The two matters were heard together, however the proceedings brought by the former wife were settled on terms that she would receive a legacy of $120,000 inclusive of costs. The net distributable estate was approximately, $1.7m.
Held: The Plaintiff had been in a defacto relationship with the deceased. She had cared for the deceased and lived with him in a close and loving relationship for 16 years. The court considered, among other things, the relevant financial circumstances of the daughter, step-daughter, grandchildren and step – grandchildren. The Court held that the appropriate provision for the Plaintiff is a legacy of $825,000 and made orders accordingly.
Daughters obtain provision where whole estate left to son
Lajcarova & Anor v Todorov [2011] NSWSC 522
Brief facts: This case involved a Family Provision order being sought by two daughters of deceased under the Family Provision Act 1982 . The whole estate of approximately $620,000 had been left to the son who had looked after the deceased. The daughters lived in Macedonia. Prior to her death, the deceased had made a statutory declaration explaining why she had not left anything in her will to her daughters. This included a statement that: “I wish to leave my estate to my son because of his substantial dedication to me and on the basis that my husband did not make financial contributions or gifts to him during his lifetime but did so to my daughters in Macedonia without my knowledge.”
Held: That each daughter is an eligible person under the Act and that the provision made for each in the will is inadequate. The Court made orders including that one daughter receive out of the estate of the deceased in New South Wales a lump sum of $79,000 and the other daughter receive a lump sum of $93,000.
Children of first marriage succeed in application for provision
Young & Grainger v Outtrim [2011] NSWSC 391
Brief facts: The deceased’s will left the whole of the estate to his wife of 32 years. The children of the deceased’s first marriage (the Plaintiff’s), sought a family provision order out of the estate or notional estate of the deceased and an order designating property as notional estate. Prior to his death, the deceased had made a statutory declaration explaining why he had not left anything the children of his first marriage. The value of the estate and notional estate at the date of hearing was approximately $3, 640,000.
Held: The Court took into account matters including the financial position of each of the parties, the size and nature of the estate, the relationship between each party and the deceased and the relationship between the deceased and other persons who have legitimate claims upon the deceased’s bounty (the widow and their children). The Court found that each Plaintiff is an eligible person and that the provision made for each in the Will was inadequate. The Court made orders including: that the first Plaintiff receive a total lump sum of $650,000 (with part of that to be held by a trustee) and the second Plaintiff should receive a lump sum of $290,000.
Testator found not to have testamentary capacity
Manning v Hughes – Estate of Ludewig [2010] NSWSC 226
Brief facts: This involved competing applications for probate of wills of the deceased. The deceased died on 23 January 2008. She was a widow and had no children. The deceased made a will dated 12 July 2006. That will appointed her brother Robert Manning as executor and left her estate equally between her two brothers, Robert and Brian Manning, and her sister, Barbara Hughes. Barbara Hughes and her daughters (the deceased’s nieces) disputed the validity of the 2006 will on the ground that the deceased lacked testamentary capacity as she was suffering from dementia at the time of making the will. They sought probate of an earlier will dated 3 September 1992.
Held: The Court commented that it does not follow that merely because a patient might be diagnosed with dementia it should be concluded that the patient does not have the capacity to understand the act of making a will, or to appreciate the general nature of his or her assets, or to identify those with a claim on his or her testamentary bounty and have the ability to evaluate the respective strengths of such claims. The Court considered, among other things, expert medical evidence. The Court accepted that the evidence of the deceased’s forgetfulness, lack of insight, inability to hold a complex conversation, and a certain degree of paranoia, indicated that she suffered both from a loss of memory and frontal lobe disease that impaired her cognitive functions such that the Court could not be satisfied that she had testamentary capacity when she signed her will dated 12 July 2006. The Court ordered that probate of the earlier will, that of 3 September 1992 be granted.
Court of Appeal upholds $400,000 awarded to step son
McArthy v McArthy [2010] NSWCA 2003
Brief Facts: The deceased, died without a valid will at 87 years of age and his whole estate (valued at about $3million) passed to the appellant, his only biological son. The respondent is a stepson of the deceased. His mother married the deceased in 1973. It was the deceased’s third marriage and at the time of the marriage the respondent was about 6 years old. The marriage broke down in 1981 and the spouses separated. The repondent at that time went to live with his mother.
The repondent had made a successful claim for provision from the deceased estate, and the Court awarded him $400,000. The appellant appealed the Court’s decision.
Held: The Court looked at the factors considered by the judge at first instance, including the size of the estate, the probability of the respondent receiving from his mother’s estate and cases saying that where there is a large estate and limited claimants the court may have a more liberal approach to the order it makes than in other cases. The Court also looked at the financial position of the respondent and appellant, both of which were relatively wealthy and considered that there was no judicial error in making an allowance for the education of the respondent’s children. The Court said that evidence showed the deceased was on good terms with the respondent up until death and that “ Everything indicates that his desire would have been to give a substantial benefit to his stepson” . The Court held the amount of $400,000 was within the range of what could be awarded and could be justified. The appeal was dismissed.