Published in the Coffs Coast Advocate on 22 November 2014.
When Jane’s father died, he left her his pastoral business. Jane, an only child, had devoted a large part of her life to the operation of the business.
Jane’s son, Jim lived on the farm with Jane and his grandfather for many years. Jim has very few assets and owes a significant sum to the ATO as a result of his struggling fence construction business.
Jim received no provision from his late grandfather’s estate and consults a solicitor regarding his rights. The solicitor advises Jim that because he can demonstrate that he was “dependent” upon his grandfather, he is eligible to make a claim for provision from the estate. His solicitor warns him that such a claim in the circumstances could however, be risky. Jim nonetheless proceeds with a claim.
Jane and Jim are unable to reach an agreement and the dispute is heard in the Supreme Court. The judge orders that Jim shall receive a lump sum payment of $100,000 and several annual payments of $50,000, which are payable by Jane on the basis that she receives the whole of her father’s estate. Jim’s legal costs are also ordered to be paid out of the estate.
Jane, however is aware that the pastoral business is only “borderline viable” due to problems such as drought and general unpredictability. She is concerned that she cannot raise the funds to comply with the orders made by the court and appeals the decision.
The Court of Appeal finds that the original judge’s decision should be overturned on the basis that, in this case, “community standards” would not justify an interference with the deceased’s will.
The court also found that although Jim was technically “eligible” to make a claim, given the relatively small size of the estate and that there was a lack of contact between Jim and his grandfather in recent years, the deceased had no obligation to provide for Jim in his will.
The Court of Appeal therefore ordered that Jim should receive nothing from his grandfather’s estate and also ordered that he pay Jane’s legal costs personally.
