The Sydney Morning Herald recently reported on a Case (Jodell v Woods [2017] NSWSC 143) where a daughter (Ms Woods) was left out of her mother’s $2 million dollar Estate. After making a family provisions claim Ms Woods was granted a legacy of $425,000 for ongoing expenses.

 

Why did this happen?

Where a person makes a family provision claim the Court can determine whether the eligible person has been given an adequate provision for the proper maintenance or advancement in life. The Court cannot make a provision for a person just because they believe the Will to be unfair.

 

Eligible Person

Only an eligible person can make a family provisions claim. Eligible persons include:

  1. The spouse of the deceased;
  2. A de-facto partner of the deceased;
  3. A child of the deceased;
  4. A former wife or husband of the deceased;
  5. A person who was wholly or partly dependent on the deceased, and is a grandchild of the deceased, or a member of the deceased household; or
  6. A person who was living in a close personal relationship at the time of the deceased person’s death.

What does the Court look at?

In making an order for the provision of a legacy in the estate, the Court may look at the nature of the relationship between the deceased and the party seeking an order. If the deceased and the Applicant are “estranged” the Court may find that the Applicant is not eligible for a provision in the Will, or, may be entitled to less than they would have received if the estrangement had not occurred.

 

What happened in this case?

In this matter, there was a period of ‘estrangement’ between Ms Woods and the deceased. Ms Woods and the deceased had not seen each other since 1996. Ms Woods, had lived overseas and in Victoria between 1997 and 2008. At the Hearing Ms Woods produced three letters which she had written to the deceased between 1996 and her death in 2014, sharing news with the deceased, inquiring about the deceased’s health and attempting to meet with the deceased to reconcile.

 

The Court did “not regard the circumstances of the Plaintiff’s relationship with the deceased to be such as to relieve the deceased of her obligation to make adequate provision for the proper advancement in life of the Plaintiff.

The Court will also look at the Applicant’s assets, debts and earning capacity in determining whether to make provision for the Applicant. In this matter, the Applicant was a retiree who owned a property in Victoria, which was mortgaged, a car, some shares and monies in a bank account.

 

The Court allowed a provision of $425,000 to Ms Woods, which would allow her to pay her mortgage and credit card debt and allow her a buffer of $270,000 for the exigencies in life.

If you want to read more about this case, you can read the newspaper article in the Sydney Morning Herald or the case report on Austlii.

 

 

If you believe you have not been adequately provided for in Will, please telephone our office to make an appointment to discuss your options. Our first 30 minute consultation is free.

You can speak with our solicitors Hamish Williams or Jacinta Watkins, who wrote this article and who have been looking after our Estate and Probate matters for a couple of years now.

 

They can answer your initial questions, like whether or not you are an eligible person, and let you know what is involved in making a claim and how much it will cost.  We note that the legal costs in this particular case were $200,000, and they were paid by the Estate.  This means there was $200,000 less available to the beneficiaries.  

At Coode & Corry we do fixed costs for all of the initial stages of these sorts of legal matters, and we will explain to you what our daily rate is for the final hearing.  If you would like to know more about our fixed costs please make an appointment and speak to Hamish or Jacinta and they can provide you with a simple, written explanation of our costs.

 

More Information

If you would like more information about Estates and Probate, please click on the blue button to the left to read more of our articles on that topic.