Wills and estates: July 2017

The protective jurisdiction, close personal relationships and family provision

The judgment of Lindsay J in Estate MPS deceased [2017] NSWSC 482 is interesting for a number of reasons.

Firstly it examines the elements of a ‘close personal relationship’ and found that, although the plaintiff and the deceased occupied separate residences, the absence of a single residence was not an impediment to satisfying the element of ‘living together’ based on extensive case law discussed in the judgment (from [25]).

The judgment also considers ‘conduct disentitling’ and its interrelationship with s 60(2)(m).

What, however, is of greater interest to practitioners is the consideration of whether a protective order was required. The successful plaintiff, a disability support pensioner, conducted the proceedings without a tutor but there was doubt as to his capacity for self-management.

The level of costs was criticised. Part of the explanation for their quantum may have been the result of the plaintiff’s precarious mental health.

The deceased died intestate. Her estate was approximately $2m. The only next of kin was her surviving brother.

Provision was made for the plaintiff of $550,000 to be held on protective trust. The form of the protective trust is to be the subject of further orders.

An appeal has been foreshadowed by the defendant.