Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 25 July 2015.
Jane died at the age of 93, leaving an estate valued at approximately $1.25 million. Jane was widowed many years ago and is survived by her 3 children, namely Jack, Jill and John.
Jane’s last will left a gift of $100,000 to Jack’s only child and left the rest of her estate to Jill and John equally. Jack was disinherited.
Jack was discharged from bankruptcy in 2013 and since then has not accumulated assets of any significant value. Jack believes that due to his financial needs, he is entitled to something from his late mother’s estate and he commences action in the Supreme Court of New South Wales, seeking what is known as a family provision order.
Jill and John, as the executors of the estate, are named as defendants.
As part of their defence, the executors testify that Jack had been estranged from Jane for approximately 20 years. Importantly, they also discover a letter drafted by Jane explaining that the reason Jack was disinherited, was because, through his own choosing, he played no part in her life during the period of estrangement and that Jane and the rest of the family suffered a great deal of pain and upset as a result.
Jack claims that he attempted a reconciliation and adduced evidence that there was no callousness or hostility on his part.
The court ultimately decided that Jack’s attempted reconciliation was in fact simply an attempt by him to ascertain whether he was going to receive any inheritance.
The court also found that despite Jack’s ability to demonstrate significant need, Jane had no obligation to make provision for him, as an adult child, and that in the circumstances, current community attitudes did not entitle him to an order in his favour.
Accordingly, the court dismissed Jack’s claim and ordered that he pay his own, and the estate’s significant legal costs.
Unhappy with this result, Jack appealed the decision and the matter was then heard by the Court of Appeal. The Court of Appeal agreed with the lower court’s decision and dismissed the appeal, again, with costs.
