The Succession laws in New South Wales provide that if the deceased has not made adequate provision for an eligible person’s proper maintenance and advancement in life, then the Court has the power and is required to determine what provision is to be made.
In Watton v MacTaggart  NSWSC 1233, the Supreme Court of NSW ruled in favour of the Applicant (Janette Wattan) on her family provision claim against her late father’s estate on the grounds that she had not been adequately provided for under his Will.
The proceedings relate to Ronald Bruce MacTaggart (the deceased/Janette’s father) who died on 19 February 2018, aged 96 years. Ronald left behind two surviving children, Janette aged 68, and David MacTaggart (the Defendant) aged 62.
About a year prior to the date of his death, Ronald had prepared a Will, in which he divided his $2.6 million Estate between his two children and another 18 beneficiaries. Under the Will, the deceased gave 50% of his Estate to his son David, while the remaining 50% of the Estate was to be divided equally between Janette and the other 18 beneficiaries. This meant that under the Will, Janette would only receive a benefit of about $60,000 from the $2.6 million Estate (the gross value of the Estate).
As Janette was a child of the deceased, she was an eligible person pursuant to the Succession Act 2006 (the Act).
Once eligibility was determined, the Court then had to determine whether Janette had been left without adequate provision for her proper maintenance and advancement in life pursuant to section 59 of the Act. This involved considering Janette’s personal circumstances, which included the following:
- Janette had been separated from her ex-partner since 1996 (however, they were not divorced). They had two adult children from their relationship, however she was estranged from them.
- She had no dependants.
- She had ongoing mental health problems and was dependent on her friends.
- For a period of about 40+ years, she had little contact with her father. This is because she alleged that there was sexual misconduct towards her by her father in her childhood.
- She had been employed in various capacities over the period from 1998 to 2005, however she has been unemployed since 2005. Since then, her only income was the aged pension, including energy and pension supplements.
- She had present and future needs, which included the cost of accommodation, furniture, health insurance, medication expenses, etc.
After consideration of all of these circumstances, the Court formed the opinion that Janette did not receive adequate provision from the Estate. It was then open to the Court to alter the distribution of the Estate.
In her judgement, Chief Justice Ward stated that [at 236]:
“As to the evaluative process required by s 59 of the Succession Act, I have taken into account all of the factors set out above and I have concluded that, considered at the time of the determination of Jannette’s application, the deceased did not make proper provision for her under his Will. Relevantly, I consider that this is a case of the kind referred to by way of example in Taylor v Farrugia  NSWSC 801, where Brereton J (as his Honour then was) said that (at ):
… where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute.”
Her Honour acknowledged Janette’s personal circumstances, the fact that she had fallen on hard times and that the Will did not adequately provide for her.
In considering the allegation made by Janette against her father, His Honour stated that [at 239]:
“I accept that the estrangement between Jannette and her father is a relevant factor to take into account. However, I also accept that on Jannette’s part such estrangement is likely to have been motivated by her belief that she was sexually abused by her father. I make no finding as to whether that belief is correct (nor could I possibly make any such finding on the evidence before me).”
Her Honour however continued and stated [at 240] that:
“I certainly do not suggest that any order for further provision is, or should be seen as, reparation or compensation for any such conduct in the past. It is not. Rather, it is an order that follows the evaluative process set out in the Succession Act”.
Conclusively, her Honour ruled in Janette’s favour. She determined that the benefit of $60,000 provided to her under the Will was not an adequate provision for her proper maintenance and advancement in life. Her Honour instead ordered that a family provision order be made in Janette’s favour for the sum of $300,000 in lieu of the distribution made for her under the Will.
Have you been left out of a loved one’s Will, or do you believe the amount you have been left is inadequate? Our experienced team at Lionheart Lawyers will be able to advise you on your legal rights in the event that you may wish to contest a Will.