Which case won?

The case for the daughter
  • I was coerced and intimidated by my father not to obtain proper legal advice.
  • It’s true that I signed the deed. However, given the lack of legal advice, I was not in a position to make any of the promises contained in the deed.
  • Specifically, I did not understand the meaning of the “release” not to bring a subsequent claim against the estate.
  • I was threatened with eviction from my home if I did not accept the early inheritance and sign the deed, so my signature was obtained under extreme duress.
  • The provisions of the deed were unfair given the widely differing valuations of the four properties.
  • My father unfairly forced me to sign the deed to fulfil his financial plan, even though he knew I was in a vulnerable position due to my marital problems.
  • I have suffered from poor health since childhood and now have multiple ailments, so I will continue to incur significant expenses for ongoing medical treatment.
The case for the son as executor
  • My sister has been sufficiently provided for, particularly since she ignored our parents and did not regularly visit or attend family gatherings.
  • She also did not contribute to the family business operation to the same extent as the rest of us.
  • When my sister finally signed the deed, she did so with her own solicitor.
  • While my sister claims to have suffered from poor health since childhood, I do not believe she has any of the illnesses she claims to have.
  • Our parents’ intention in creating the deed was to distribute their wealth equally among their children.
  • The whole purpose of the deed was to prevent any challenge to our parents’ wills and to release our rights to apply for a family provision order.
  • By signing the deed, my sister accepted the property where she lived as an early inheritance and agreed not to make any further claims on the estate. She is bound by the terms of the deed and her family provision claim should be dismissed.

So, which case won?

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Expert commentary on the court's decision

“While the parents had tried to divide their estate equally between their children, the way it was done did not necessarily achieve that result. Neither did the deed achieve its important objective of preventing any legal challenge to the wills of the parents after their demise.”
Supreme Court of NSW finds in favour of daughter

In the matter of Last v Lewis [2022] NSWSC 791, the Supreme Court of NSW found in favour of the daughter, Robyn Janet Last.

Her brother, Kevin John Lewis, who was executor of the estate, was unable to rely on the deed created by his parents, Edna Leonne Lewis and Leslie William Lewis, to prevent Robyn making a family provision claim on estate.

The court did ultimately make a family provision order, which was paid out of the estate.

Did Robyn sign the deed of her own free will?

The effect of the deed for the purposes of Robyn’s family provision application depended upon whether the court would approve the release in the deed. To do this, the court had to consider the terms on which the release had been agreed and the circumstances of the case. 

Although Leslie and Edna’s children other than Robyn executed the deed relatively freely, the arrangement put to them by Leslie was completely inflexible.

Robyn executed the deed in the fear that she really had no choice if she wished to receive the early inheritance and retain the property where she lived as her home. The court took the view that such fear limited Robyn’s capacity to assess the deed in a calm and rational way.

The court determined that Robyn did not enter the deed of her own free will. Rather, she only did so under considerable pressure from her father, which meant that she was unable to give due consideration to the advantages and disadvantages to her in entering the deed.

This meant that Robyn’s brother Kevin, as executor of the estate, could not rely on the release in the deed due to the circumstances in which the deed was signed.

Was Robyn eligible for a family provision order?

Section 59 of the Succession Act grants the court power to make an order for further provision out of the estate of a deceased person in favour of an eligible person if the court is satisfied that the will of the deceased person has not made adequate provision for the proper maintenance, education or advancement in life of the eligible person.

Although Robyn ultimately executed the deed, she did so under pressure and with strong reservations about the fairness of its terms. When considering the family provision claim, the court weighed the significance of the deed carefully in considering whether Robyn’s father had made adequate provision for her.

The view of the court was that Robyn suffered from a greater than ordinary level of debilitating illness which was likely to progress in a way that would cause her substantial discomfort and impinge on her mobility.

The court agreed there was a strong likelihood that Robyn would incur substantial expenses for future medical treatment.

Deed fails to achieve intended results

While the parents, Leslie and Edna, had tried to divide their estate equally between their children, the way it was done did not necessarily achieve that result.

Neither did the deed achieve its important objective of preventing any legal challenge to the wills of the parents after their demise.

The court found that Leslie Lewis had not made adequate provision by his will for Robyn’s proper maintenance, education or advancement in life and her family provision application was successful.

The estate of Leslie Lewis was valued at over $7 million. The court ordered that Robyn receive a lump sum payment of $425,000 from the estate to help her meet the future contingencies of life.

No such thing as a claim-proof estate

There is no legal equivalent of a silver bullet that can protect an estate from having a claim made against it. Even a deed of family arrangement such as the one discussed in this case is subject to the court’s approval.

Distributing an estate in advance of death requires careful consideration of the parties’ circumstances. Any agreement which is designed to serve that end must be drafted carefully to reduce the risk of a future claim being made on the estate.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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