The decision of the Supreme Court of NSW in Theoctistou v Theoctistou [2013] NSWSC 1487 is a reminder of the principles which the Court applies in determining whether to make an additional provision for an adult child out of a deceased estate.

Anthony, the deceased’ son, who was 59 years old when his father passed away, was left $50,000 out of his father’s estate. The estate was valued, for probate purposes at $919,532.

Anthony had 3 brothers who also received $50,000 each. The remainder of the estate was left to Anthony’s stepmother (and the deceased’s wife of 52 years).

The Court decided that in addition to the $50,000 which Anthony received out of the estate, Anthony should receive an additional $250,000 – which was to be taken from the stepmother’s share of the estate.

The factors for such decision include:

1.  Anthony had large debts of just over $400,000 in total;

2.  At the time of the hearing, Anthony worked as a part-time cleaner but, due mainly to a stroke he suffered in 2006, Anthony was unable to work full time;

3.  There was a “close and loving relationship” between Anthony and his father;

4.  The stepmother was “in a much stronger financial position” than Anthony; and

5.  The stepmother had no debts of any significance.

In granting Anthony an additional legacy of $250,000, the Court also ordered that Anthony’s legal costs be paid out of the stepmother’s share of the estate.

The Court’s decision provides a useful summary of the principles which are applied in accessing a claim to be paid out of the stepmother’s share of the estate.

If you are in a similar position or would like to update your will or estate planning, contact the lawyers at The Quinn Group. Call our office on 02 9223 9166 or submit an online enquiry.

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