A recent decision in the New South Wales Court of Appeal analysed what is ‘proper maintenance education and advancement in life’ for able bodied adult children – SMILEK V PUBLIC TRUSTEE  NSWCA 190.
The case involved the deceased’s two step-sons. The deceased died without a will. There were no competing claims. The estate was small. The step-sons were unsuccessful at first instance before Judge Windeyer who considered he was not able to interfere with the distribution of the deceased’s estate.
The Court of Appeal thought differently and considered it could take into account prevailing community standards.
The stepsons were each middle-aged. Like so many of us, neither had made sufficient provision for retirement. Both were unlikely to be in a position to do so given their particular circumstances which involved the prospects of unemployment and redundancy/early retirement. Each of the step-sons had a close relationship with the deceased and each had made significant non-financial contributions to the deceased’s welfare. The deceased made no provision for either step-son in circumstances where there existed no other claims upon his bounty.
The Court of Appeal took into account prevailing community standards of what is right and appropriate. Each of the step-son’s received 50% of the net residue after payment of the testamentary costs and the significant costs of the litigation.
What the Court of Appeal’s decision demonstrates is the necessity when preparing cases of this sort, to concentrate upon evidence of needs rather than compiling a wish list. Insufficient provision for retirement is a need. The construction of a pergola and a family visit overseas would fall in the category of wish list.
In allowing the appeal the Appeal judges said that wish lists were counterproductive because they diverted the judge’s attention from the real needs of the step-sons, which was for the advancement in life by additional provision for their retirement.
The lesson is to get it right the first time. That is, analyse what are your needs and provide evidence of those needs.
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