Only child awarded $350,000 after being left out of will

Published 23 Aug 2016

A Cessnock woman has been awarded over $350,000.00 after being left out of her father’s will. The Plaintiff, Ms Campbell, was the only child of the deceased. Her father, who died in 2013, made no provision for her in his will dated in 2011. He left the entirety of his Estate to his great-grandchildren and his partner.

Under the Succession Act 2006 (NSW), an order for family provision can be made only to eligible persons. Being the child of the deceased the Plaintiff was an eligible person. Further to this an application for family provision has to be made within 12 months of the date of death. The Plaintiff satisfied this.

The Will

The will provided for the following:

  1. The deceased’s partner received the right to reside in the deceased’s premises;
  2. The deceased’s two great-grandchildren to receive the remainder of estate upon reaching 18 years of age.

The Will also provided the following specifically:

“I have not provided for my daughter Denver Campbell because I have already given her $100,000.00 in or about 2003.”

The fact that the Plaintiff received this money was not disputed.

The Estate itself comprised of the following:

  1. The house valued $235,000.00;
  2. $512,928.92 held on trust by the Defendant solicitors;
  3. Shares listed in companies valued at $35,064.19;

Setting aside the house which is present occupied by the deceased’s partner, the value of the Estate was $547,993.11. The Parties also accepted that the legal costs of these proceedings were $113,985.25, to be borne by the Estate, therefore taking the net distributable value of the Estate to $434,007.86.

The Plaintiff’s circumstances

The Plaintiff is 48 years old. She is the only child of the deceased and shared a close relationship with her father.

She is presently employed as an enrolled nurse and she has a de-facto partner. The joint income of the Plaintiff and her partner is equivalent to their joint expenses.

The Plaintiff has $6,500.00 in assets including a 10 year old care which has now travelled 170,000 kilometres. She has no liabilities and has superannuation of $38,000.00. Her partner has assets of $9,000.00 and $30,000.00 in debts.

What Provision ought to be made?

The legal question that must be asked is whether or not adequate provision has been made for the Plaintiff. In these circumstances, given that no provision has been made, it was rather uncontroversial in stating that adequate provision had not been made, and therefore the question became what provision ought to be made.

His Honour considered the following areas as reasons why they Plaintiff needed adequate provision:

  1. Accommodation: The Plaintiff works in Cessnock and was required to travel a long distance to work. She submitted that should she receive money from the estate, she would purchase her own accommodation in Cessnock, jointly with her partner. She submitted she wanted a three bedroom house to facilitate the visits of her grandchildren. The Court accepted this submissions and ordered an amount of $255,000.00 to be made to provide for this.
  2. Further Education: The Plaintiff submitted she required some provision for her further education to increase her nursing qualifications. The Court accepted that she could use provision for the whole of the course expenses and some text book expenses, and awarded an amount of $50,000.00 in that respect.
  3. Car – The Plaintiff drives a care which 10 years old. The Court accepted that she would require a new car to assist with her regular commute between Cessnock and Armidale where she would be studying. Accordingly, an amount of $15,000.00 was awarded in this respect.
  4. Furniture – The Plaintiff submitted she had very limited appliances, and if she bought a new house would require new furniture for the house. To this the Court awarded $10,000.00.
  5. Vicissitudes – the Court considered that the Plaintiff was in good health, was a relationship with a partner who is able to provide some income and she was able to work and was going to study to increase her employability. Accordingly, a modest amount of $20,000.00 was awarded for vicissitudes.

In total, the Court awarded the Plaintiff $350,000.00 out of the net distributable value of the Estate which was $434,007.86, being a large portion of the Estate.

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