NSW Supreme Court takes on family provision case

Published 13 Sep 2013

In a recent case that made it to the New South Wales Supreme Court, a man whose wife passed away filed a family provision claim asserting he was entitled to a portion of his wife’s estate, despite not being named in her will.

In the judgment, Supreme Court Justice J. Hallen wrote that Plaintiff John Bernard Jagoe filed the claim regarding the will of the deceased Barbara Jagoe. Ms Jagoe had previously been married decades earlier to another man, with whom she had four children.

Mr Jagoe, or John, was also previously married, which ended in 1978. He and the deceased met a few years later, were friends for two years, moved in together in 1986, and married in 1987.

This equates to a marriage of 24 years and a relationship of about 25 at the time of Ms Jagoe’s death. The will she left behind was deemed sound by the NSW Supreme Court, and called for her entire estate to be divided equally between her four children.

John was not mentioned anywhere in the will, and nothing Ms Jagoe left behind gave any indication as to why her husband of 25 years was left out of the will.

The judge also noted that John’s will, written in 2005, included his deceased wife, with all of his estate that was left over at debts, funeral and testamentary expenses to be split between her and his three children.

Determining John’s right to the deceased’s estate

After looking at all the facts, Justice Hallen determined that the length and nature of the marriage between John and Ms Jagoe provided ample evidence that there was no reason he should have been left out of the will.

“Whatever resentment, or complaint, the deceased raised with any of her children about John, it was not significant enough to end their marriage, and the marriage continued as a generally loving and harmonious one,” the judge wrote.

“I also remember his contribution to the welfare of the deceased and to members of her family.”

In the end, the judge decided that John should not be awarded the lump sum of $750,000, but rather, that he should be entitled to 33 per cent of Ms Jagoe’s estate, which would be calculated after the sale of their shared home and other costs.

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