8 Mar 2017The recent case of Jodell v Woods before the NSW Supreme Court highlights how a family provision order can beat being cut out of a will.
A 99-year-old mother, Clarice Winifred Woods, left her 73-year-old daughter Winifred Ann Jodell out of her will, leaving the entirety of her $2 million estate to her 66-year-old daughter, Helen Jean Woods.
Older daughter challenges younger daughter for share of estate
The elder sister had been estranged from the mother for much of her life, yet she successfully challenged her sister for a share of the estate on the basis of a family provision order, arguing that her mother’s will left her with inadequate provision for proper maintenance in life.
Despite a claim by the younger sister that she had a right to be sole beneficiary of her mother’s estate because her elder sister was estranged from their mother, Justice Phillip Hallen found the estrangement did not completely negate Ms Jodell’s need for financial help. Justice Hallen awarded the elder sister $425,000 from the estate for her ongoing expenses.
The fact that the elder daughter had been estranged from the mother did not mean that she could be cut out of the mother’s estate if it could be established that she needed support that would normally be expected to come from a deceased parent’s estate.
Under part 3.2 of the NSW Succession Act 2006, a person can make a family provision order from an estate to provide for “maintenance, education or advancement in life of an eligible person”.
Disinherited daughter eligible to apply for family provision order
Even though the elder daughter was estranged from the mother, that did not rule her out from making an application for a family provision order. The law does provide consideration for the “character and conduct” of the applicant, and that must be a factor in assessing the relationship and the reason for being left out of a will.
The judgement shows that the father left his entire estate to the elder daughter when he died in 1996. It was just $86,000, but it demonstrates that the divisions within the family were not all to the elder daughter’s disadvantage.
Daughter’s attempts at reconciliation rejected by mother
The judge found it significant that after her father’s death, the elder sister tried to repair relations with her mother, but was rebuffed.
The plaintiff’s case was assisted by having copies of letters she had written to her mother wishing her well and providing news of her children. The mother never replied, but the letters established that the elder daughter was making the effort to re-establish contact before her mother died.
This registered with the judge, who said: “I do not regard the circumstances of the Plaintiff’s relationship with the deceased to be such as to relieve the deceased of her obligation to make adequate provision for the proper maintenance and advancement in life of the Plaintiff.”
He went on to say that the mother “should not have been blind to the needs of one of her two children”.
For more information about family provision claims, please see Family provision claims in NSW – spare us the details and curb your expectations.
