Legal Hypothetical: Agonising Court ruling in estate claim

MARY passes away after a three-year bout with cancer.

She leaves two adult children, David and Julie.

Julie lived with Mary for fifteen years prior to her death.

Mary’s will gifts her four-bedroom home to Julie and only makes nominal provision for David.

There is a mortgage on Mary’s home, with $300,000 owing.

Mary also made a binding death benefit nomination in relation to her superannuation, with the effect that Julie receives 90 percent and David receives ten percent of the death benefit.

Julie uses her share of the super to pay $200,000 off the mortgage.

David makes a claim against Mary’s estate, seeking further provision.

David says that Julie does not need a four-bedroom home and asks for it to be sold so that he can receive a share of the proceeds of sale.

He says he needs funds to meet his living expenses due to various health problems preventing him from obtaining employment.

David discloses his financial circumstances, indicating he has no savings.

David also asks for the Court to order the redistribution of Mary’s superannuation, so that he receives a greater share.

Julie says that she cared for her mother during her illness and that she should not be ordered to vacate the home.

Julie also provides the Court with a letter, hand-written by Mary, stating that Julie had been “a blessing during times of need”.

Julie adduces subpoenaed records from David’s previous employer and Facebook posts as evidence that David’s alleged health issues do not render him incapable of working.

Julie also produces bank statements indicating that David has not disclosed a bank account with a balance of $10,000.

Nonetheless, the Court accepts that both parties have demonstrated that they have financial needs but ultimately, having “agonised” in assessing the matter, rules against awarding David with additional provision and orders the parties to pay their own legal costs.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at or call him on (02) 66 487 487.

This column is only accurate at today’s date and cannot be relied upon as legal advice.

By Manny WOOD, Solicitor

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