Smith v Johnson [2015] NSWCA 297 Court of Appeal Supreme Court New South Wales – Judge Decreases Provision from Will

Published 26 Jul 2016

Author: Garbis Kolokossian

Almost a year on and the drama continues. In one of our previous case commentaries on the court judgment Andrew Robert Stuart Johnson v Karen Elizabeth Smith and David Charles Johnson [2014] NSWSC 1682 heard on 27 November 2014 before Kunc J, the Court had awarded the youngest sibling in the proceedings, Andrew Johnson a sum of $500,000.00 out of the estate of his deceased mother on the basis that he was not adequately provided for in the will from his deceased mother.

The will was made on 5 January 1962. Accordingly, there was an equal distribution of $1,219.000.00 paid out of the estate to Andrew, and his brother and sister, Karen Elizabeth and David Charles. However, Andrew had seen none of this money as he had debts totalling $480,000.00 which were owed to the estate arising out of legal costs made against Andrew in intra-family litigation. The judge in those proceedings determined that Andrew was not adequately provided for in his mother’s will after considering his poor financial and employment circumstances, and his close relationship with his mother. The judge ruled that provision ought to be made from the estate for his accommodation, a car, and a sum for discretionary expenditure and a buffer against troubles in life.

The judgement was subsequently appealed by both Karen and David, and judgment was handed on 30 September 2015, by the Court of Appeal. The Court of Appeal revisited the reasoning of the first Judge, and commented “that sufficient, but not over generous provision should be made for Andrew”. The first judge made a provision for a two bedroom apartment in Western Sydney to Andrew as opposed to a studio in Western Sydney, which was aggressively contested on appeal.

The case was also appealed on the ground that the provision to Andrew from the will was adequate, and if it had been inadequate, this came about from Andrew’s own conduct in failing to build up any assets and his choice to engage in intra-family litigation. The Court agreed on this point and found in favour of the appellants.

On the question of whether Andrew’s needs were adequately provided for, the Court considered if Andrew’s need for a two bedroom apartment for work or study requirements was appropriate, as Andrew indicated a need for a guest room to pursue his studies relating to the decolonization of West Papua. At cross examination, Andrew could not demonstrate his knowledge and passion for West Papua from his vagueness about the extent of involvement he had with West Papua.

On the evidence, the Court of Appeal concluded that there was insufficient proof to establish that Andrew’s circumstances created a need for anything other than a reasonably appointed one bedroom unit.

Lastly, in relation to the award of a buffer against Andrew’s troubles in life, the Court of Appeal came to the view that the figure of $90,000 initially awarded for Andrew’s trouble’s in life, having regard to his psychiatric disabilities and his inability to obtain employment to be reduced down in the range of $50,000 to $70,000. The basis for the reduction was that community expectations would command an amount, which would be sufficient in preventing an individual from ending up in destitution.

On these reasons, the Court of Appeal reduced the provision out of the estate from $500,000.00 to the range from $280,000 to $300,000.

If you happen to be in a stressful contesting wills issue, contact GMP Contesting a Will Lawyers for a free legal consultation.

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