When Joseph Saba died at age 104 he was survived by six children and he divided his estate so that each of the three daughters received between $50,000 - $90,000 whilst his three sons received $570,000 each. Ultimately, this ended up as a dispute commonly known as a contesting of a will dispute.
The Claimant’s Financial Position
As a result each of the three daughters brought a claim for provision under section 59 of the Succession Act 2006 (NSW). Two of the daughters settled their claims and the 3rd, Judy a cross-cultural psychologist, sought an order for further provision out of the estate in circumstances where her annual salary was about $95,000 per annum. Judy also owned an apartment jointly with her husband valued in excess of $570,000 (with a mortgage in the order of $383,000), had superannuation of about $305,000 and her husband earned $55,000 per annum and had superannuation of about $62,000.
The Claimant’s Relationship with Deceased
The court noted that Judy had a close relationship with her late father and that she made a number of personal sacrifices in caring for him in his later years. In fact in some respects she put her personal life on hold by deciding not to have children so that she could care for father.
The Relevant Principles
Simply put section 59 of the Succession Act permits the Court to make such an order as it thinks fit if the applicant is an eligible person, and the will fails to make adequate provision for that person’s proper maintenance, education and advancement in life. In discussing the relevant principles the court noted: -
“The guiding "principles" were summarised by Hallen AsJ in Gersbach v Blake [2011] NSWSC 368 at [94]-[96] as follows:
a)it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate;
b)it is not part of the Court's role to achieve some kind of equity between the various claimants;
c)the Court's role is not to reward an applicant, nor to distribute the deceased's estate according to notions of fairness or equity;
d)the Court is to be vigilant in guarding against a natural tendency to reform the testator's will according to what it regards as a proper total distribution of the estate;
e)rather, the Court's role is of a specific type and goes no further than a making of "adequate" provision in all the circumstances for the "proper" maintenance, education and advancement in life of an applicant (see also Bryson J in Gorton v Parks (1989) 17 NSWLR 1 at 6);
f)in considering what is adequate provision for the proper maintenance, education and advancement in life, the Court is to have regard to what is considered to be right and proper according to contemporary accepted community standards (see also Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; HCA 19 at 19 per Dixon CJ; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [269ff]);
g)the Court's discretion is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation (see also Pontifical Society at 19 per Dixon CJ and McKenzie v Topp [2004] VSC 90 at [63] per Nettle J); and
h)freedom of testamentary disposition remains a prominent feature of the Australian legal system (see also Lajcarova v Todorov at [91]).”
Applying the Principles
Whilst there is a temptation to think of Judy circumstances in terms of fairness alone that would be incorrect as that is not the test. The court was solely concerned with the question of whether or not the will made adequate provision for her. In applying the principles the court found that the will did not make adequate provision for Judy particularly because it appeared unlikely that she would be able to reduce her mortgage debt noting that she took time off work to care for her parents and her dad in particular. Clearly, there was a sense of sacrifice on her part.
If you find yourself in a position where a loved one has passed away and you need advice about whether you are eligible person and entitled to bring a claim for provision then contact our Sydney litigation lawyers find out your options. Alternatively, you may be an executor needing advice about your options when faced with such a claim.
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