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SUPREME COURT Confirms NOT every player in a family provision claim wins a prize.

Updated: Mar 6, 2021

The Supreme Court of New South Wales in the recent decision of Burke v Burke (2014) NSWSC 1015 demonstrated that not every financially strained child who challenges their parent’s Will because no provision was made for them in it will be successful.

The estate had a net value of approximately $1.25 million. The deceased mother aged 93 left behind a son aged 69, another son aged 66, and a daughter aged 61. No provision was made in the Will for the 69 year old son, who had no superannuation, did not own his own home (nor did his wife), and was bankrupt (as was his wife).

The deceased left behind a letter stating as follows:

It has come to my attention that my Will dated 23 June 2003 may become the object of a challenge by my eldest son Terry Burke. I am setting down the following remarks, so that it is clear as to why I made the decisions contained within that document.”

The letter went on to outline numerous facts including that her eldest son did not invite anyone from the family to his wedding, did not attend his own son’s funeral, and that he became totally estranged from the extended family without explanation.

The Court noted an earlier judgment of the Court of Appeal in which it was stated that “. . .the Court should accept that testators are, in certain circumstances, entitled to make no provision for children, particularly in the case of children who treat their parents callously, by withholding without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility.”

The Judge accepted that on all the evidence it appeared that the plaintiff wanted nothing to do with his mother or the rest of his family. Justice Rein concluded that:

“. . .in my view the deceased was entitled, notwithstanding the fact that the plaintiff was her son, to regard him as a person undeserving of any benefit from her estate whatever his financial circumstances at the time of his application. I do not think that members of the community would regard such a view by the deceased as not right or as inappropriate even were the deceased to be aware that her son had fallen on hard times following the failure of his business. Accordingly, notwithstanding the poor financial circumstances and taking all matters favourable to him into account including the size of the estate I think no provision ought be made out of the estate for him”.
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