Published 09 Jul 2014
Author: David Cossalter
This matter was heard before Nicholas AJ in the Supreme Court of New South Wales.
The Plaintiff in this matter, Sally Davis, and the Defendant, Alison Anne Davis, were the daughters of the Deceased, the late Phyllis Marjorie Davis (Mrs Davis).
In her will Mrs Davis left Sally three items of jewellery, and left the residue of her estate, including her Lane Cove property to Alison. In her will Mrs Davis outlined that the reason for leaving Sally such a small portion of her estate was that Sally owned her own home. At the time that this case was heard Mrs Davis’s estate was determined to be valued at $811,261.25.
It was agreed between the parties that Sally was an eligible person and that adequate provision had not been made for her in Mrs Davis’s will. However, there was issue between the parties as to the nature and quantum of an appropriate order for Sally.
In coming to a decision as to what would constitute adequate provision for Sally the court took into account Sally and Alison’s circumstances.
Sally was a single, 71-year-old woman who lived on her own, and suffered from a range of health conditions. In 2007 Sally had sold her house and established a market linked superannuation fund, which decreased in value during the financial crisis. The fund provided Sally with a pension, but did not allow for lump-sum withdrawals. Sally’s monthly income, including payments from Centrelink and her superannuation fund, was $2,755.45. However, this was set to increase in July 2014 to $3,719.95. Sally’s monthly expenditure was in excess of her monthly income, and this would remain the case even after the increase in her income. The Court took into account that Sally had a close relationship with her mother throughout her life.
In relation the Alison’s circumstances the court considered that she was a 76-year-old single woman. Alison’s fortnightly’s income was approximately $1,068. However, a part of this was made up of a superannuation pension and which was only predicted to last another 5 years, and she had few other assets. Alison had lived in the Lane Cove property for the majority of her life. Although, Alison lived in the property on a rent-free basis, she had contributed towards household and renovation expenses. In addition Alison had been her mother’s carer and had retired at the age of 60 in order to become her mother’s full time carer.
The Court also took into account that the reason for Mrs Davis having left Sally such a small legacy, i.e. because she owned her own home, no longer existed as Sally had sold her home.
The Court concluded that an adequate order for family provision for Sally would be one that relieved her “tight financial position”. As such, the Court ordered further provision for Sally out of her mother’s estate in the amount of $220,000.