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 provided for the following:
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:
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:
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.