Testamentary Freedom v Family Provision – What is “Proper maintenance and advancement”

Josipa Sreckovic died in December 2015, aged 90 years. Josipa’s husband, Jezdimir predeceased her. There were two children of their marriage, Lillian, and Gina aged 65 and 59.

Josipa migrated to Australia, with her two children, in the late 1960s joining her husband (the children’s father) who had arrived from their native Serbia 12 months before.

In about 1979 Josipa and Jezdimir purchased the family home in Pagewood for about $64,000. In 1987, Lillian after commencing a relationship moved out of the family home; her son Benjamin was born in 1991. Lillian’s relationship with Benjamin’s father ended and she returned to live in the Pagewood property, with Benjamin, in about December 1997. They remained living there, with Josipa and Gina until February 2005.

In January 2005 Josipa made a Will appointing Gina executrix and sole beneficiary. The Will deliberately omits Lillian on two grounds

  • she owns sufficient property and has the financial resources to assist her and her son (“my grandson”) whilst Gina does not own any such property
  • Lillian and my grandson have caused me great distress and have not cared for me and assisted me the way my daughter Gina has done for many years.

Probate was granted on this Will in April 2016.

Lillian sought a family provision claim out of the estate and/or notional estate of Josipa pursuant to Chapter 3 of the Succession Act 2006 (NSW) (“the Act”).

The Court takes a number of factors into account including the applicant’s financial position, relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make a claim.

The Court considers a broad range of factors, as the definition of “adequate provision” is unique to each circumstance brought before the court.

In the Inventory of Property of Josipa’s estate at Probate was estimated to be $1,500,000 made up solely of the family home. The Plaintiff filed a Summons on 12 May 2017, in which she sought an order that the time for the making of her application be extended to the date of the filing of the Summons, the family provision order, and an order for her costs to be paid out of the deceased’s estate.

The Court accepted that apart from a period of about 6 years of their joint lives, there was a reasonably close relationship between Lillian and Josipa, although, at times during their relationship, they did not always get on; the Court should take into account, and evaluate, the whole of the circumstances regarding the relationship. Including that in her previous Will Josipa made equal provision for both Lillian & Gina.

Similarly, the Court had to take into account that Josipa chose Gina as the recipient of the whole of the estate. Owing to the fact that Gina was a loving and dutiful daughter, who cared for and assisted her mother throughout their lives together to the best of her ability.

In taking all of the circumstances into account, the Court was satisfied that the will had not made adequate provision for Lillian’s proper maintenance and advancement in life.  Notwithstanding her conduct in the period between 2005 and about 2011, the Court found that Lillian’s conduct over their joint lives should not to disentitle her, completely, to provision out of Josipa’s estate.

The Court balanced the amount to be provided to Lillian from the estate with Josipa’s entitlement to testamentary freedom, including the fact that Josipa made a detailed statement setting out the reasons she had for making no provision for Lillian

The Court believed that provision for Lillian’s proper maintenance and advancement in life is by way of a lump sum of $100,000. In calculating this sum the Court took into account the value of the estate; Gail’s competing claim; and that the sum is within Gail’s financial reach without having to sell the Pagewood property equating to less than 10 per cent of it’s current agreed value.



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