New legal developments (Case Law)

Our Contested Wills & Estates team is up-to-date on all new legal developments and changes to the law. This page provides information, in the form of summaries, on recent contested will cases in New South Wales (NSW). If you’d like further information on these cases, feel free to get in touch with us by calling the number below.

Recent cases

1. Stollery v Stollery [2016] NSWSC 54

In a family provision claim brought by an adult son, where the son was left a nominal 0.25% legacy from his father’s $3.8m estate, a substantial proportion of the estate left to the deceased’s grandchildren. The son had been estranged from his deceased father for 25 years.

The Judge found the claimant did not adequately disclose his financial position – which is key to such claims – not expanding greatly upon his employment as a “professional punter”, giving vague details as to his income from gambling, which the Judge found inconsistent with his spending.

As the Judge was not convinced the applicant made full disclosure of his financial circumstances, the judge assessed that it was not shown that adequate provision was not made, and dismissed the claim.

It is of paramount important in family provision claim that a claimant give full and frank position of their financial circumstances, as provision is not provided on grounds of overall fairness or equal distribution, but solely as to whether adequate provision was made for the proper maintenance, education and advancement in life of an applicant.

2. Marino Zugan v Angela Zugan (aka Koppel) [2015] NSWSC 1821

Rarely will a court interfere with a deceased’s will where they have divided their assets equally between their surviving children.

A family provision claim, in its essence, is to ask the question “Did the deceased, in all the circumstances, make adequate provision for the claimant?”

In the majority of instances where the claimant is an able-bodied adult in employment, and the other beneficiaries are in a similar financial circumstances, the court will generally not increase provision to the claimant and consequently dismiss their claim, as occurred in this instance.

In this case, where the deceased’s divided her estate equally between her two children, and one child made a claim for increased provision, the court found against him, stating that the deceased’s will “conforms with what is considered to be right and proper according to contemporary community standards”.

This is not to say that in the instance where a will does not leave the estate equally between surviving children that the court will make orders for the estate be divided equally between surviving children, as it is not the purpose of the court to achieve an “overall fair” distribution of the estate or to achieve some kind of equity between the parties.

The court’s role is not to reward an applicant, or to distribute the estate according to notions of fairness or equity but to go no further than to make “adequate” provision in all the circumstances for the “proper” maintenance, education and advancement in life of the applicant.

In the instance where the Court believes adequate provision has already been made, they will not award an increase of provision.

3. Poletti v Jones [2015] NSWCA 107 (27 April 2015) (Basten JA, Emmett JA & Leeming JA)

Following a 21 year estrangement, two daughters were deliberately excluded from their father’s will for intervening in the family law proceedings between their parents in support of their mother and having no contact with their father thereafter. An order was made in the Supreme Court (Slattery J) that each of two daughters receive an amount of $450,000.00. The matter was appealed, and the appeal dismissed. The two daughters were found to be not solely responsible for the estrangement.

See Also: Estrangement: What does it mean in the law of succession in New South Wales? (Turnbull Hill Lawyers)

4. Burke v Burke [2015] NSWCA 195 (13 July 2015) (Meagher JA, Ward JA & Emmett JA)

There was a 20-year estrangement between the deceased and 1 of her sons. The issue was whether the son was responsible for the estrangement. The son advised his family that he intended to live a separate life from them, and did so until the time of his mother’s death.

5. Grover v NSW Trustee & Guardian [2015] NSWSC 1048 (04 August 2015) (Hallen J)

A grandchild applies for provision out of his grandfather’s estate worth $1.5 million. The grandson was not provided for in the will. The grandfather instructed the solicitor at the time of making his will that the grandchild may be a potential claimant on his estate. The solicitors’ notes state that the grandfather instructed that the grandson may claim dependency however stated that he only spent school holidays with him and resided very briefly with him some years ago. An order was made in favour of the grandchild that he receive $225,000.00 from the estate.

Turnbull Hill Lawyers, and specifically Adrian Corbould, have been named in the prestigious 2024 Doyles Guide. Both have been listed in the guide since 2018.