Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 6 July 2019.
This week’s column updates a case involving Susan and Gordon. They were in a blended family and when Susan dies leaving Gordon with an indexed annuity of $52,000 per year, Gordon made a claim against her estate seeking further provision.
Gordon owns his home, has $300,000 in superannuation and a further $150,000 in savings.
Susan’s will left the remainder of her $5 million estate to her two children, from a previous relationship.
Susan’s children were able to demonstrate that they had relative financial needs.
When the matter was first heard in the Supreme Court of New South Wales, the Judge dismissed Gordon’s application on the basis that given Gordon’s financial circumstances, the payment of one thousand dollars per week to him for life, was “proper and adequate”.
The court stated that Susan had no obligation to make more favourable provision for Gordon than the provision made for her children and also stated that Susan’s right to make a will “should not be interfered with”.
Gordon appealed the decision.
On appeal, the court stated that it was not “confined by notions of reluctance to interfere” with a person’s right to make a will.
The court ruled that because Gordon was “capable of managing his own affairs” he should have control of his own resources and should not be reliant on Susan’s children making periodical payments to him.
On the basis of Susan’s “moral duty” in the light of “community standards”, the court ordered that the payments by way of the annuity were not adequate and instead ordered that , Gordon receive a lump sum of $1.5 million plus the payment of his legal costs.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
