A ruling that allowed a 65-yr-old daughter to receive substantially more than the $40k gifted from her mother’s estate has been appealed.
Coral Scott’s will – made two months before she died – left her Fairfield, NSW residence to daughter Charlene and legacies of $40k to her son and her other daughter Coralynne.
Justice Guy Parker in the NSW Supreme Court had held that the provision made in the will was inadequate for Coralynne given her financial position and her needs.
He assessed that Coralynne be provided for to the extent of a further $180k payable out of the proceeds of sale of the Fairfield property.
No final orders were made as the court found that validity of the will was in question – based on legal capacity and considerations of undue influence – and wanted to give Coralynne and her brother Clifton the opportunity to challenge it. If such a challenge was upheld the three children would receive equal distributions according to the provisions of a prior will.
Charlene appealed the $180k further provision assessment for Coralynne.
Coral had died on 23 July 2019 aged 89.
The main estate assets were the residence valued at $780,000 and bank accounts totalling $150,000 which funds were being depleted by costs and withdrawals made by Charlene.
Both Coralynne and Charlene had lived at home with their parents for most of their lives and both claimed contributions to the estate.
Coral and her late husband Clifton had made wills in 2015 in “mirror” form leaving everything to each other, then in equal shares to the 3 children.
But likely due to the deteriorating relationship between Coralynne and Charlene, Coral made the new will in May 2019 favouring Charlene.
She also recorded a written testamentary statement explaining her reasons for making the bequests as she did.
Justice Parker found that some of those reasons were falsely premised and that the document had been prepared by Charlene on her computer for their mother to sign.
Charlene – whose evidence at trial was considered unreliable – contended on appeal it had not been open to the primary judge to have found Coralynne’s assistance to her parents had been on the understanding that she was to receive an equal share of their property.
Justice Anthony Meagher – in delivering the lead judgment of the appeal court – disagreed, noting that such an expectation was a matter of ordinary human experience.
The fact that both parents had made earlier wills on the same terms fortified the soundness of such a finding.
Charlene also argued the primary judge had erred in finding Coral’s reasons for not providing for Coralynne were falsely based.
Justice Meagher explained though that the award of a further provision was a reflection of Coral’s fair and considered judgment in 2015, whereas the 2019 will – based as it was on the spurious testamentary document – was not.
It remains to be seen whether a challenge to the validity of the 2019 will will be mae by Corlaynne or Clifton. The costs of such proceedings will further erode what will be available for them even if they are successful in such a challenge.
Scott v Scott [2022] NSWCA 182 Ward P Meagher, Kirk JA, 20 September 2022 Read case