01 August 2016
Further family provision when the plaintiff's life is "a modern urban fiasco"
Background – Revell v Revell (2016) NSWSC 947
The 60 year old son of the deceased received a legacy of $1.5 million from his late father’s estate and applied to the Court for further provision. Should he receive more?
The deceased had left a statement of reasons explaining why he was not making greater provision for his son. What weight should the Court place on this?
The son’s claim was ultimately unsuccessful. Who should bear the legal costs of the hearing?
Whilst enunciating important points in family provision practice and procedure, the judgment of Pembroke J contained some notable observations about the situation:
“The father’s story is one of survival, hardship and determination. The son’s life, on the other hand, seems like a modern urban fiasco – for which no one else is to blame and certainly not his father.”
By his Will, the deceased had given his son and daughter $1.5 million each and the balance of his estate (about $7 million) to his third wife, to whom he had been married for 22 years.
Pembroke J reiterated two principles that are pertinent to family provision law:
- “courts do not rewrite the will of a deceased person simply because it appears to be unfair, unequal or otherwise”; and
- "courts naturally respect and give deference to the considered judgment of apparently rational and sensible testators.”
When he signed the Will, the deceased also signed a written statement explaining why he had only made provision of $1.5 million for his son. The statement referred to various gifts made during the lifetime of the deceased to the son as well as the deceased’s understanding of the son’s then financial position. Whilst the son’s circumstances had deteriorated since the date of the statement:
“the significance of the statement is not the accuracy or otherwise of the detail that was set out in it. Its accuracy could never be guaranteed and the passage of time would inevitably render some facts obsolete. What matters more is the sentiment that the statement conveys; the conviction that it demonstrates; the indication of careful thought that it reveals.”
For these reasons, the Court concluded that:
“the plaintiff’s legacy of $1.5 million was ‘adequate’ in the circumstances for his proper maintenance and advancement in life. Adequate means no more than sufficient. It does not connote generosity. It is a word of circumspection that implies no more than is necessary.”
One concession that the Court was willing to make to the son was on the issue of costs. Despite the claim for provision being unsuccessful, the Court decided that an adverse costs order would detract from the adequacy of the legacy to the son and instead ordered that the costs of the hearing should be borne by the estate (effectively, the widow).
This case demonstrates three important points in family provision litigation:
- An able-bodied adult child does not have an inherent right to a greater share of an estate.
- A carefully drafted statement of reasons that demonstrates considered and rational thought can be useful in defending an estate against a family provision claim.
- Costs are at the discretion of the Court but can be paid from the estate even if the claim is unsuccessful.
Author: Philip Davis