Do not count your chickens before they hatch: Inheritance of Grandson overruled!

A man who won an inheritance from a Supreme Court of NSW judge has had the same inheritance taken away from him by the NSW Court of Appeal.

Robert Wilcox was left out of his Grandfather’s Will and everything was left to Robert’s mother, Patricia. Robert brought a claim under the Succession Act 2006 (NSW) for provision from his Grandfather’s estate. The primary judge agreed with Robert’s claim and ordered that an immediate payment of $107,000 be made to Robert, with seven annual payments of $40,000 commencing after two years.

Patricia appealed to the NSW Court of Appeal and won. Justices Basten, Barrett and Gleeson ordered that the provision made by the primary judge be disallowed. Robert was ordered to pay Patricia’s costs.

The main issue in the case was whether the primary judge erred in his discretion to order provision in light of the factual circumstances.

The Court of Appeal held that it is appropriate to have regard to perceived prevailing community standards of what is right and appropriate even though this may be an imprecise, variable and contestable standard.

When determining whether community standards indicate that provision ought to be made for a grandchild, guidance may be taken from the reality that, generally, a grandparent does not have a responsibility to make provision for a grandchild. That responsibility is not enlivened because a grandparent contributes to a grandchild’s education or bestows considerable largesse on him or her. Something more than the existence of normal family relations and affections is required.

The conferral of particular care and affection by a grandchild and his or her legitimate expectations of inheritance may be relevant to determining whether such an obligation exists.

Other matters to be taken into account may include the size and nature of the estate, the relationships involved and the circumstances and needs of other persons.

The Court of Appeal in Chapple v Wilcox [2014] NSWCA 392 held that the decision of the primary judge, on the facts, was unreasonable or plainly unjust in such a way that there had been a failure to properly exercise the judicial discretion.

By Steve McAuley, Accredited Specialist Commercial Litigation, McAuley Hawach Lawyers.

McAuley Hawach Lawyers
Level 7, 9 George Street
Parramatta NSW 2150
PO Box 873, Parramatta NSW 2124
DX 8282 Parramatta
Tel: (02) 9633 1826
Fax: (02) 9687 8114

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