Bosschieter v Howitt [2024] NSWSC 1676

Bosschieter v Howitt [2024] NSWSC 1676

The $200,000 gift from the deceased to the plaintiff was set aside because the plaintiff took advantage of the deceased's special disadvantage and unconscionably procured the transfer without ensuring the deceased had independent legal advice. Accordingly, the plaintiff is to repay that sum to the estate with interest. The plaintiff was an 'eligible person' to seek provision from the estate, and is entitled to further provision but only to the value of the estate's chose in action to recover the $200,000, so the benefit effectively neutralises her inheritance claim.

Parties
Plaintiff/cross Defendant: Justine Bosschieter; Defendant/cross Claimant: David Howitt as executor of the estate of the late Margaret Norma Howitt
Jurisdiction
Australia
Judgment Date
23 December 2024
Procedural Posture
Succession/family Provision and Equity (cross Claim for Unconscionable Conduct/undue Influence) / Principal Judgment
Outcome
Defendant's cross-claim successful; plaintiff's claim for further provision partially allowed.
Legal Topics
Family Provision, Unconscionable Conduct, Undue Influence
Succession Equity Family Provision Unconscionable Conduct Undue Influence

Case Brief

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Parties

Justine Bosschieter

Plaintiff/cross Defendant

David Howitt as executor of the estate of the late Margaret Norma Howitt

Defendant/cross Claimant

Procedural Posture

Succession/family Provision and Equity (cross Claim for Unconscionable Conduct/undue Influence) / Principal Judgment

Legal Issues

  1. 1 Whether the plaintiff is an 'eligible person' under the Succession Act 2006 to seek family provision
  2. 2 Whether further provision from the estate should be made for the plaintiff
  3. 3 Whether the $200,000 gift from the deceased to the plaintiff should be set aside due to unconscionable conduct or undue influence

Ratio Decidendi

The $200,000 gift from the deceased to the plaintiff was set aside because the plaintiff took advantage of the deceased's special disadvantage and unconscionably procured the transfer without ensuring the deceased had independent legal advice. Accordingly, the plaintiff is to repay that sum to the estate with interest. The plaintiff was an 'eligible person' to seek provision from the estate, and is entitled to further provision but only to the value of the estate's chose in action to recover the $200,000, so the benefit effectively neutralises her inheritance claim.

Court Disposition

Defendant's cross-claim successful; plaintiff's claim for further provision partially allowed.

Orders

  • Plaintiff to repay $202,247.29 to the estate plus interest
  • Plaintiff is 'eligible person' under Succession Act and entitled to further provision equivalent to the value of the estate's chose in action to recover the gift