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Case note: Impact of Testamentary Statement

Importantly, the Applicant in this matter, and the Respondent, to whom a more generous quantum of the estate was left, lived with the deceased in the Fairfield property until her death in July 2019. Both parties tendered evidence that they had contributed long term to the household, either financially, through cash payment of board, and financing new appliances and family trips, or through the provision of assistance, including taking the deceased to appointments and to the shops. Ultimately, presiding Justice Guy Parker found for the Applicant and granted leave to seek a family provision order. In reaching his conclusion, His Honour provided useful commentary, particularly as to the impacts of testamentary statements in estate litigation and the meaning of proper maintenance in respect of adult children.

Impact of Testamentary Statement

The deceased provided a statement of testamentary intention to accompany her May 2019 Will, intended to elucidate the intention behind the unique distributions the Will prescribed. His Honour provided a brief commentary as to the persuasiveness of this statement, and of testamentary statements more broadly.

First, His Honour echoed previous case law in stating that testamentary statements, should, where it is clear they are the product of a cognitively capable testator, be granted significant weight in determining the proper level of provision a Court should apportion. This is known as the ‘testamentary judgement principle’ (Sgro v Thompson [2017] NSWCA 326 at 48). However, before such weight can be granted, it is appropriate for the Court to consider the circumstances in which the statement was drafted, and the extent to which it can be seen to represent an “independent and considered” judgement by the deceased. In this matter, it was held that the testamentary statement was not definitive of the deceased’s intention. Rather, his Honour remarked quite unreservedly, that the relevant statement was “the result of a process of manipulation and misinformation on the part of Charlene [the Respondent] designed to advance her own interests”.

In reaching this conclusion, Justice Parker closely examined the process by which the statement was drafted, and what appeared to be a concerted effort on behalf of the Respondent to avoid having the Applicant read the Will. He also referenced the evidence of the deceased’s treating general practitioner, which in both clinical notes and in Court testimony emphasised that the deceased’s cognitive capacity was variable and impaired.  His Honour further considered that the Will contained false and exaggerated complaints concerning the Applicant, which seemed to reflect the opinions held by the Respondent. Justice Parker’s commentary thus provides a helpful reiteration of the threshold requirement for the engagement of the testamentary judgement principle, that the same testamentary statements be independent, considered and supported by evidenced cognitive capacity.

Provisions for Advancement

Where the distribution of an estate results in a child being given less than what is required for their maintenance, education or advancement, s57 of the Succession Act (NSW) permits the Court to make an order rectifying this. Justice Parker’s judgement explores the meaning of the terms ‘maintenance’ and ‘advancement’ in relation to adult children, noting that the provision relating to education was not relevant to this proceeding.

His Honour emphasised that in determining what is adequate for an adult child’s maintenance or advancement, it is not necessary for the adult child to demonstrate any “need” for the funds in the estate. It is not relevant for the adult child to compile a list of expenditures to compare against their actual earnings to illustrate their entitlement pursuant to s57 of the Succession Act (NSW). Indeed, in this matter, the Applicant was evidently financially independent, had recently purchased her own property, and could demonstrate a long history of hard work and commendable savings. In contrast, the Respondent was less financially independent and had a lesser income. The maintenance and advancement in relation to the Applicant included her ability to ensure her financial security going forward, and to enjoy a more comfortable retirement in the future. Thus, the meaning of maintenance and advancement per s57 of the Succession Act (NSW) does not necessarily relate to provisions for younger children to be cared for financially whilst unable to do so themselves, but may also relate to provisions for adult children seeking to establish the security of their financial future.

The Applicant’s claim to this end was aided by a few factual features. First, that considerable assistance provided had been provided to the deceased by the Applicant throughout her lifetime, in both a financial and non-financial sense. Second, that the deceased had come into ownership of the property following the death of her husband. Prior to his death, the deceased and her husband had held mirrored Wills, which left the property to each other, in the event of their death. Justice Parker indicated that this fact created a ‘moral force’ tending in favour of the Applicant’s claim. This was bolstered further by the provision in the mirror Will which had held that, if funeral and testamentary expenses could not be met from the residual estate, they would be shared amongst the three children.

On account of these factors, Justice Parker found in favour of the applicant, granting leave to seek a family provision order in a separate proceeding.

Should you have any family provision concerns, please contact Joshua Dale of Carroll & O’Dea on 8226 7345

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