Legal Hypothetical: Estate planning for a child with a disability

BARBARA has two children, David and Peter.

Unfortunately, Peter suffered a debilitating brain injury as a result of a motor vehicle accident. He has since been found by NCAT to be incapable of managing his affairs and the New South Wales Trustee has been appointed as his financial manager.

Peter receives funding under the National Disability Insurance Scheme.

He also stands to receive substantial compensation under the Motor Accident Injuries Act.

Peter receives a disability pension.

He lives alone in rental accommodation and has no dependents.

Barbara makes a will and on the basis that she believes that Peter’s financial needs will be largely met, leaves him 30 percent of her estate.

David, who is relatively healthy and has two adult children, receives the remaining 70 percent of Barbara’s estate.

Barbara passes away, leaving an estate worth $1.5 million.

The New South Wales Trustee commences action against David, the executor of the estate, seeking further provision on Peter’s behalf.

The Court makes a number of valuable observations regarding the adequacy of the provision that Barbara made for Peter.

The Court acknowledges that Peter is a person in need of a high level of personal care and accommodation adapted to his disabilities, but states that the availability of “other means of support” is relevant to the assessment of Peter’s needs.

The Court states that an award for additional provision that would allow Peter to purchase a residential property, from David’s share of the estate, was not appropriate and in assessing the current social conditions and standards, awards Peter an additional legacy of $150,000.

The Court states that Barbara, acting “wise and just rather than fond and foolish” in all of the circumstances ought to have made this additional provision for Peter.

Unfortunately, the total legal costs of the proceedings were similar to the additional amount awarded to Peter.

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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