Weekes v Barlow  NSWSC 1776
The New South Wales Supreme Court recently heard an application for family provision pursuant to section 59 of the Succession Act 2006 (NSW) (Act). Mr Dallas John Rhodes Nunn (deceased) died on 2 May 2013, aged 89 years old. His estate was worth approximately $680,000. The deceased had four daughters and four step daughters.
The defendant was one of the daughters of the deceased, (Judy). Judy and the plaintiff were the two executors to whom Probate of the deceased’s will dated 3 July 2003 (Will), was granted. The plaintiff, Ms Joy Weekes, was the de-facto partner (of about 23 years) of the deceased and was 92 years of age. By agreed life expectancy tables it was agreed that the plaintiff had a life expectancy of some four years.
Under the Will the plaintiff was to receive a $50,000 legacy, any motor vehicle or caravan and all personal and household effects of the deceased. A legacy of $30,000 was provided for Judy.
The Will also provided for a “Fund” to be established, which was to be held on trust for the plaintiff for her life. The Fund consisted of the deceased’s residence, a sum of $20,000, “a sum sufficient to cover debts charged on, or owing with respect to, the assets placed in the Fund” and any assets added to the Fund or proceeds from the disposal of any assets of the Fund. The Fund was to pay all rates, taxes, insurance premiums and other outgoings payable in relation to assets of the Fund (e.g the home). The Trustees of the Trust (being the plaintiff and Judy) were given discretion to distribute income of the trust to the plaintiff or the residue of the estate in such amounts and proportions as they saw fit.
On the plaintiff’s death the balance of the Fund was to form part of the residue of the estate to be divided equally between the deceased’s daughters and step daughters.
There was no dispute that the plaintiff was an eligible person or that she had the status to bring proceedings under section 57(1) of the Act (s 59(1) (a)).
The factors considered under section 60 of the Act included:
- The plaintiff and the deceased had a long happy relationship.
- The deceased partially maintained the plaintiff during their relationship.
- The plaintiff did not have any significant physical, mental or intellectual disability, she had arthritis in her knees and suffered from kidney stones. There was no evidence of any physical, mental, or intellectual disability of any beneficiary.
- The plaintiff had made significant contributions to the estate of the deceased. The plaintiff had in the past paid the net proceeds of sale of a unit ($94,000) to the deceased, who used the money to improve and acquire other properties where they resided together. She also provided care for the deceased, especially in the last years of his life.
The Court found that the Will did not make adequate or proper provision for the plaintiff and made a family provision order in her favour. Subject to any submissions as to the precise form, the following orders were made:
- The plaintiff to receive a lump sum of $100,000 absolutely out of the estate, to be paid out of the estate not comprising the Fund.
- The balance of the estate (not consisting of the Fund) after the payment of costs, to be distributed to the residuary beneficiaries in accordance with the terms of the Will.
- The amount comprising the Fund to be retained by the plaintiff and the defendant, as trustees, to provide for the plaintiff’s accommodation for her life.
- The income from any part of the Fund that is not used for the purpose of providing such accommodation for the plaintiff should be paid to the plaintiff for her life.
- The capital of the Fund not to be paid to the residuary beneficiaries until after the plaintiff’s death.
- The plaintiff’s costs (ordinary basis), and the defendant’s costs (indemnity basis), to be paid out of the balance of the estate of the deceased.
Justice Hallen noted that the competing claims of the named beneficiaries were important and must not be forgotten or given no weight. However, the Court found that:
- The provision made for the plaintiff, was neither adequate nor proper.
- Taking into account the relevant considerations listed in section 60 of the Act, the Court was satisfied that for the purposes of section 59(1) (c) of the Act, that the deceased did not make adequate provision for the proper maintenance or advancement in life of the plaintiff.
It was noted that cases under the Act are fact specific, and earlier authorities provide no more than useful guidance which must be considered with caution. However the case is of note for its thorough analysis of what amounts to “proper” provision and not merely what is “adequate”, particularly if one is aged 92 years.