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Aveyard v Selwood; Philpott v Selwood; Riley v Selwood [2024] NSWSC 29

Where there’s a will, there’s a way

A recent Supreme Court Decision has demonstrated that when there is a will that does not allow for the “proper maintenance, education or advancement in life” of eligible persons ie family members, the Court will make an order for provision out of the estate of the deceased to do so.

This case involved three applications made for provisions under s 59 of the Succession Act, submitted by late John Raymond Selwood’s (the Deceased) daughters regarding the Deceased’s will dated 23 March 1984.

The Deceased’s will left his estate as follows:

I REVOKE all prior Wills and I APPOINT my wife THELMA EILEEN SELWOOD sole Executor of this my Will AND I GIVE DEVISE AND BEQUEATH the whole of my property, both real and personal of whatsoever nature and wheresoever situate to my said wife for her own use and benefit PROVIDED THAT she survives me for a period of One (1) calendar month from the date of my death and in the event of my wife not so surviving me as aforesaid then I APPOINT my son, GARRY JOHN SELWOOD sole Executor of this my Will and I GIVE DEVISE AND BEQUEATH the whole of my property as aforesaid, to my said son for his own use and benefit and in the event of my son predeceasing me THEN I APPOINT my daughters VICKI PAULINE SELWOOD and SUSAN CHRISTINE SELWOOD Executrices of this my will and I GIVE DEVISE AND BEQUEATH the whole of my property as aforesaid, to my said daughters in equal shares as tenants in common for their own use and benefit absolutely.

The controversies regarding the Deceased’s will was that it left his entire estate to his only son Gary and was made more than 37 years before his death.

The value of the deceased’s distributable estate was approximately $3.15 million, this included a farming property called Hillcrest, funds in a solicitor’s trust account from the sale of a neighbouring property called Leighton, money in bank accounts and two motor vehicles.

The issue for the court to consider was whether factors warranted making orders for provision in favour of the three adult daughters of the deceased.

The Court agreed with the daughters that the Deceased’s will did not make adequate provision for their proper maintenance, education or advancement in life.

Orders were made for lump sum payments to the daughters, with costs to be paid from the estate and directives for the payments to be made within a three-month timeframe, failing which the sale of Hillcrest was ordered.

Most of the difficulties described in this case could have been avoided if the Deceased had regularly updated his will with the assistance of a legal professional.

This case demonstrates that when there is a will (that has disinherited family members), there is way (for the court to make orders to ensure those family members are adequately accounted for).

At Matthews Folbigg we are seeing an ever increasing occurrence of challenges to wills and contested estates.  Therefore it is important to ensure that your will documents are up to date and prepared by an experienced will drafting solicitor who has experience with defending against family provision claims.

You can find the judgement here: https://www.caselaw.nsw.gov.au/decision/18d5d8b60ca3fa032ab3622d#

Matthews Folbigg Lawyers has a specialist team dedicated to Wills and Estates. If you would like more information or advice in relation Wills and Estate practice and procedure, please  contact Mimi Su on (02) 9635 7966 or by email mimis@matthewsfolbigg.com.au to discuss