Court makes provision for son left out of father’s Will

The recent Supreme Court of New South Wales decision of Rathswohl v Court [2021] NSWSC 356, involved 3 siblings disputing their entitlements to their late father’s estate. The defendant, Yvette, claimed she cared for her father for the last 18 months before he passed away, with no other help from the other two siblings. The other two siblings, Lisa and Robert, the latter being the plaintiff in these proceedings, denied these claims.

The deceased’s last Will left his house to defendant, noting the plaintiff had his own business and house. The plaintiff’s business failed and his house was sold due to financial difficulty and his future employment prospects were considered slim. The plaintiff had a history of drug addiction and alcohol problems.

The plaintiff relied on a secret conversation recorded on a mobile phone between Lisa and the deceased, conversing about the time and care the defendant was supplying. In most circumstances, evidence of this character is deemed illegal without the consent of the recorded party, however, there is an exception where it is found to be reasonably necessary for the protection of the lawful interests of a participant to the conversation. The Court concluded that this evidence could be admitted, and showed Yvette was for the most part an unreliable witness.

The plaintiff succeeded in receiving a provision of $500,000 out of the Estate, which was estimated at $1.36 million, plus costs. With the Court noting the amount should allow suitable accommodation, with the surplus to go towards basic health needs.

In reaching her Honour’s decision, the Court considered the considerations listed in section 60(2) of the Succession Act. In particular, the relationship between the applicant and the deceased, the nature of the deceased estate, and the financial needs of the applicant.

The decision of Rathswohl v Court [2021] NSWSC 356 can be read in full here https://www.caselaw.nsw.gov.au/decision/178b4070e80fb9a1730605b7  

Scott Eveleigh

McAuley Hawach Lawyers

11 Fennell Street, Parramatta NSW 2124

Telephone: (02) 9633 1826

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