Son Receives Entitlement From a Very Small Estate

Published 16 Jul 2014

Author: David Cossalter

This matter was heard before His Honour Young AJ in the Supreme Court of New South Wales.

The Plaintiff in this matter, Joseph Paul Dunne (Joseph), was the son of the Deceased, the late John Joseph Dunne (Mr Dunne) from his second marriage. The Defendant, Paul John Dunne (Paul), was also a son of Mr Dunne from his second marriage.

Mr Dunne’s estate was small, and the only asset was his home at Narrabri, which was valued at $270,000. Mr Dunne left his entire estate to Paul.

In considering Joseph’s application for family provision, the Court took into account Joseph’s circumstances. Joseph was a 49-year-old pensioner with physical and mental health problems. Joseph’s wife, Jenelle, was also a pensioner. Joseph and Jenelle owned their own property, however this was of relatively small value as the house on their property did not have council approval.

The court took into account that Joseph had very little contact with Mr Dunne, after he left the family home. On the other hand, Paul had a close relationship with his father and was his carer for the five and a half years before he passed away. On the evidence there were reasons for Joseph’s lack of contact with his father, including that Mr Dunne did not approve of Joseph’s choice of wife.

In his evidence Joseph outlined that he required $130,000 to build a house on his land, $34,500 for a second-hand four wheel drive vehicle for transport as well as use on his property, $10,000 for a water pump and $30,000 for a tractor.

The Defendant submitted, and the court accepted, that Joseph did not need a tractor, as his poor health would not allow him to use it and his land did not require it. Furthermore, the Court found that the estate was not large enough to meet Joseph’s entire claim. The Court considered that Joseph’s primary need was for a second-hand four-wheel drive, and a sum of money to help him plan for a rainy day.

Taking all the evidence into account, including Joseph’s needs, his relationship with his father compared to that of Paul, as well as Joseph’s claim the Court ordered that Joseph receive a legacy of $60,000 out of Mr Dunne’s estate.

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