FAMILY PROVISION – DECEASED ESTATES

The NSW Supreme Court in Revell v Revell (2016) NSWSC 947 observed that “courts do not rewrite the will of a deceased person simply because it appears to be unfair, unequal or unwise.”

In that case, a testator aged 90 at his death left $1.5 million to each of his son and daughter, and left the rest of his $7 million estate to his wife.  His son, aged 60, sought greater provision from the estate.

The testator had survived forced labour during the Holocaust, and afterwards built a successful auto-electrics business.  During his life he was generous to his son.  “It was a charmed life, more so than most Australian children could ever expect” the court found.

The son had a history of employment and self-employment in the food and beverage industry.  After two failed marriages, he was in a stable relationship at the time of the court hearing.  His partner owned assets thought to be worth approximately $900,000 net.  His own asset situation was not clear as he was involved in family law proceedings which were not yet resolved.  He was not prepared to move residence to a less expensive part of Sydney.  His goal was to open a wine or cocktail bar in an affluent part of Sydney, following what the court described as “moderate success” in business life.

The court considered that “it is not to the point” that there is a disproportion between the shares left to the deceased’s wife and son.  The court observed that it was the deceased’s right to prefer his wife.

The court found that “The contrast in the respective attributes and fortunes in life of father and son is marked.  The father’s story is one of survival, hardship and determination.  The son’s life, on the other hand, seems like a modern urban fiasco – for which no one else is to blame and certainly not his father.”

The court concluded that the $1.5 million legacy under the will was adequate for the son’s proper maintenance and advancement in life.  For example, the annual income generated by investing that sum in blue chip shares at approximately 6% return would be about $90,000 per year.

Please contact our Chris Kohler or Ross Moschella on 07 3221 8655 if you need advice regarding a family provision claim.