In the recent NSW Court of Appeal decision Chapple v Wilcox [2014] NSWCA 392, the deceased gifted his farming property under Will to his only child, a daughter. The daughter’s adult son (the grandchild of the deceased) made a claim for family provision order under the Equity Division of the Succession Act 2006 (NSW), in respect to his grandfather’s estate. This section empowers the court to make orders for the proper maintenance, education or advancement in life in favour of eligible persons for whom adequate provision has not been made under a deceased’s will.

 

The primary judge had earlier found that community standards and expectations required that provision be made to the grandson out of the estate and ordered the sum of $107,000 as an immediate payment and then seven annual payments of $40,000 commencing after two years.

 

The mother in appealing the findings submitted that the primary judge failed to give adequate reasons and erred in his statutory discretion in making the family provision order in light of the unique factual circumstances of the case, namely that her son:

 

• had the requisite training and skills to earn $100,000 a year but chose instead to make a subsistence living by operating a tree lopping business.
• had no assets and owed the ATO $107,000.
• Had a father who had recently won a significant amount of money gambling and had expressed a willingness to provide the son with some financial support; and
• had only had limited contact with his grandfather since early 1993.

 

The mother Mrs Wilcox, daughter of the deceased was the part owner of the pastoral business and assisted her father in business and personal matters, as well as caring for him in his old age.

The Court of Appeal held that, given these facts, the primary judge’s finding was unsupportable and his decision was so unreasonable or plainly unjust that there had been a failure to exercise properly the judicial discretion conferred by Chapter 3 of the Succession Act 2006 (NSW) to make such an order.

The Court went on to allow the appeal with costs.

 

Commentators have speculated that given modern society’s increase in life expectancy, it is the case more than ever before that there are a number of family generations all alive at the same time. The trend of preferring to pass wealth from grandparents down to their grandchildren is likely to be more common as life expectancy continues to increase.

 

In light of this we are likely to see more cases initiated under this and equivalent legislation by grandchildren who are entitled and standing to make a claim.

 

If you have any queries in relation to Family Provision Orders or Estate Planning concerns, please don’t hesitate to contact us.

Bruce Havilah

This website and blog is made available by Havilah Legal only to give you general information and a general understanding of the law. It is not legal advice, and should not be treated as such.

The legal information on this website is provided ‘as is’, and Havilah Legal makes no representations or warranties, express or implied, in relation to the legal information on this website.

Your use of this website does not establish a lawyer/client relationship between you and Havilah Legal. You must not rely on the information on this website as an alternative to legal advice. If you need legal advice, or if you have any specific questions about any legal matter you should consult Havilah Legal or your professional legal services provider.

Liability limited by a scheme approved under Professional Standards Legislation.