The recent case of Revell v Revell [2016] NSWSC 947 in the New South Wales Supreme Court involved an adult son, Gary Revell (“Gary”) aged 60 who made a claim for further provision from the estate of his late father, Tibby “Rose” Revell (“Tibby”).

Tibby’s estate was valued at approximately $10 million. By his last will dated July 2009, Tibby gave legacies of $1.5 million to each of his two children, the plaintiff Gary and also his daughter Sonya, who made no claim on Tibby’s estate and took no part in the Court proceedings. The remainder of Tibby’s estate was left to his third wife, to whom he had been married for 22 years prior to his death.

Contesting the will

Gary made a claim contesting Tibby’s last will, seeking further provision from his father’s estate in addition to the $1.5 million which he was to receive under Tibby’s last will.

Justice Michael Pembroke of the Supreme Court dismissed Gary’s claim following a two-day hearing. He did so for a number of reasons, however Justice Pembroke made a number of important comments in relation to family provision claims in general as follows:-

“It is desirable to re-iterate two principles that underlie this area of the law. The first is that courts do not rewrite the will of a deceased person simply because it appears to be unfair, unequal or unwise…

Adult children have no automatic right to a share in the estate of a parent. Nor do they have an automatic right to equality between them…

Freedom of testamentary disposition, subject to disturbance only where the requirements of the Act are met, is an integral part of our law” (emphasis added).

Another notable factor in this case was that when Tibby made his last Will, he also made a written statement of the reasons as to why he was only leaving Gary with a legacy of $1.5 million. A statement such as this is specifically admissible as evidence in Court under section 100 of the Succession Act 2006 and provides an important insight into the motives of why a will-maker decided to leave their property the way they did.

It is further worth noting the Justice Pembroke also questioned whether Tibby had a moral obligation to leave Gary anything at all. Of course, by leaving Gary $1.5 million, the Court was of the opinion that Tibby had left Gary more than adequate provision, and therefore declined to award further provision to Gary. It would have been interesting to see what the Court would have decided if Tibby had excluded Gary from his Will altogether.

The question of whether or not to leave an adult child out of your Will can be a difficult and complex decision. If you or someone you know are considering updating or making a Will, contact Turner Freeman Lawyers today on 02 4729 5200. Turner Freeman has Wills and Estates lawyers on hand with the necessary expertise to assist you and provide expert advice in relation to making your Will.

Kyle is based in our Penrith Office, which is home to Accredited Specialist in Wills & Estates Law, as well as Property Law, John Mann. If you require legal advice or assistance in the area of Wills and Estates Law, which might include contesting, defending or making a will, please don’t hesitate to arrange an appointment with a solicitor at our Penrith office today.

John Mann appeared on our 2GB Legal Matters program last week, where he discussed issues relating to Wills and Estates Law. The podcast from the segment can be found here: