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Home | Blog | Seeking further provision from an estate

There is a common misconception that leaving a person $1.00 or ‘just something’ in your Will prevents them from challenging or contesting your Will.

Leaving adequate provision for others in your will

In Moxey v Bass [2016] NSWSC 1022 which was decided on 26 July 2016, a family provision claim was brought by a son (the plaintiff) against his late mother’s estate. The 2 executors and defendants were a sister of the deceased and the only other son of the deceased.

The Will of the deceased provided 31/40ths of a real property to the defendant son, the effect of which was to provide almost the whole of the estate to the defendant son. The only other assets of the estate were negligible. The value of the 31/40 share of the real property was estimated to be around $1,743,750.00.

Notably, the other 9/40ths share of the real property had already been owned by the plaintiff and his wife in around 1985. That share was transferred to the defendant and his wife in around 2004.

The question to be resolved by the Court was whether, in the circumstances, adequate provision had been made for the plaintiff for his maintenance, education or advancement in life.

To consider the plaintiff’s claim, the ‘need’ for provision from the estate was considered. The plaintiff’s source of income was a disability support pension and he suffered from depression and some health complaints.

The Court also considered the relationship the plaintiff had with his mother, which had become strained after the death of the father and the terms of his Will.

The judge made a finding that despite some family arrangements regarding the transfer of interests in the estate real property, and the fact ‘some’ provision was made for the plaintiff, the Will did not make adequate provision for him. The judge said:

“It is clear that the provision made for him in the deceased’s Will is negligible, bearing in mind the value of the deceased’s estate. In this case, when I consider[the Plaintiff’s] current financial and material circumstances, including his lack of earning capacity, some lack of resources, such as superannuation, his age, and his physical condition, I am satisfied that the provision made for him in the Will of the deceased is neither adequate nor proper.”

Upon reaching the above finding, the judge awarded the plaintiff $125,000 from the share of the property to be passed to the defendant son. This amount was considered appropriate to satisfy some debts and still leave a capital sum available to the plaintiff for security into the future.

Have you been left out or treated unfairly in a will? Turner Freeman has an expert team of estate litigation lawyers who can provide you with professional legal advice and assistance.

Our New South Wales offices are in Sydney, Parramatta, Campbelltown, Newcastle, PenrithWollongong and Gloucester.

Moxey v Bass [2016] NSWSC 1022

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