Family Provision and the Notional Estate

Robert Weston died in July 1992. His wife, Laura, who suffered from Alzheimer’s disease, brought a family provision claim against his estate. Laura’s first husband died in 1944 and she married Robert in 1950. Laura had a son Peter by her first marriage however no children with Robert.

Robert made his last will in March 1989, leaving the whole of his estate to a Mrs. Whittle and if she predeceased him equally between her two children. He had met Mrs. Whittle in 1987. The Public Trustee was appointed the executor of the will.

At the time of his death Robert was in the process of selling his unit which sold after he died for $65,375.24. The balance of Robert’s estate was $26,309.81 cash in a bank account   which after paying the Estates debts and the executor’s charges was reduced to $19,632. The Will was probated and distributed to Mrs. Whittle by February 1993.

The instructions given by Robert at the time he made his will were that time Laura was living separately in another nursing home suffering from Alzheimer’s disease and Robert wished to leave his estate to a friend. Robert no longer supported Laura as she was supported by the Veterans’ Affairs pension totally. Laura’s son Peter is well off and needs no money. Mrs. Whittle is the only person who has assisted him in the last four or five years.

There is a two stage approach applied by a Court in considering applications:

The first, was the provision (if any) made for the applicant ‘inadequate for (his/her) proper maintenance, education and advancement in life’ having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on the estate.

The determination of the second stage, should it arise, involves similar considerations. However there may be some circumstances, for example where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.

Laura had pensions of $585.20 per fortnight and expenses of $391. 50 (leaving a surplus of $193.70.) , lives in a retirement village, where she is cared for and has around $5,000 cash in the bank.

At 88 years of age her life expectancy would be 5.24 years. Although her health is good she suffers from Alzheimer’s disease and has lost her cognitive and conceptual abilities. The Court must consider those who may have claim upon the estate. Mrs. Whittle has played an important part in Robert’s life in the four years before his death.

The Court held that because of her age, that an appropriate provision for the maintenance and advancement in life of Laura would be a legacy of $40,000 out of Robert’s notional estate. As Mrs. Whittle had spent the bequest the court designated the property she owned with her husband at Manly View Road, Killcare as Robert’s notional estate to the extent necessary to enable payment of the $40,000.00.