Published in the Coffs coast Advocate on 4 July 2015.
Robert dies at the age of 62, leaving 4 children. Robert’s 19-year-old son, John was diagnosed with autistic spectrum disorder and mild intellectual disability when he was a child.
Robert left a will that was made shortly before his death, leaving John the sum of $50,000. He left the rest of his estate to a female friend and appointed her as his executor.
The estate consisted of real estate and a significant sum of money in the bank, together totalling approximately $500,000.
Not long after Robert’s death, his friend obtains a grant of probate, transfers the real estate into her sole name and has the contents of Robert’s bank account transferred into her account. She retains John’s $50,000 in a separate account.
Robert’s ex-wife, and John’s mother, namely Jane is concerned that John did not receive proper provision from his late father’s estate. After seeking legal advice, she commences action on John’s behalf as his “tutor”.
Before the court can conduct a hearing, Jane committed suicide. She died with very few assets.
The court ordered that John’s uncle, Jim be replaced as his tutor, so that the matter can proceed.
The court ordered that the property that had been transferred to Robert’s friend be “clawed back” into the estate and redistributed.
The court noted that Robert and John did not have a close relationship, but that they did have contact from time to time. The court also noted that given John’s disability and his very limited earning capacity, that Robert had an obligation to provide further provision for him under his will.
The court considered the contents of a statutory declaration that Robert made at the time that he executed his will. The court found that the explanation contained in the statutory declaration as to why he made the will in such terms could be given appropriate weight but that the court was not compelled to do so.
After considering John’s financial needs and the expectations of the community, the court ordered that the provision for John out of the deceased estate be doubled to $100,000.
