Bohen v Mitchelmore [2024] NSWSC 171

Bohen v Mitchelmore [2024] NSWSC 171

Both plaintiffs, as daughters of the deceased and eligible persons, were found to have ongoing financial needs and had maintained (to varying degrees) a relationship with their mother. The testator did not give proper or accurate consideration to those needs or relationships in her will or accompanying statements, and provision out of the estate ought to be made for the plaintiffs, with each to receive one-third of the net residuary estate after costs, this amount not to be reduced by virtue of any benefit they may receive from the unresolved life insurance death benefit.

Jurisdiction
Australia
Judgment Date
29 February 2024
Procedural Posture
Family Provision Under Succession Act 2006 (nsw) / Final Judgment After Hearing
Outcome
Plaintiffs' claims upheld. Orders made for family provision from the estate.
Legal Topics
['family Provision Applications' "testator's Moral Duty" 'estrangement' 'advancement of Children' 'generation Skipping' 'testamentary Freedom']
['succession Law' 'equity'] ['family Provision Applications' "testator's Moral Duty" 'estrangement' 'advancement of Children' 'generation Skipping' 'testamentary Freedom']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Family Provision Under Succession Act 2006 (nsw) / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether adequate provision was made for the proper maintenance, education or advancement in life of the plaintiffs under the deceased's will" 'The effect of the relationship and any estrangement between the deceased and the plaintiffs' 'Whether the testator gave proper consideration to the moral claims of her daughters' "Assessment of the grandchildren's competing claims as beneficiaries" 'Financial needs and circumstances of the plaintiffs' 'Impact of unresolved distribution of life insurance death benefit']

Ratio Decidendi

Both plaintiffs, as daughters of the deceased and eligible persons, were found to have ongoing financial needs and had maintained (to varying degrees) a relationship with their mother. The testator did not give proper or accurate consideration to those needs or relationships in her will or accompanying statements, and provision out of the estate ought to be made for the plaintiffs, with each to receive one-third of the net residuary estate after costs, this amount not to be reduced by virtue of any benefit they may receive from the unresolved life insurance death benefit.

Court Disposition

Plaintiffs' claims upheld. Orders made for family provision from the estate.

Orders

  • ['Evidence in each of the probate and family provision proceedings to be evidence in the other, subject to relevance.' 'Declaration that provision ought be made from the estate of Caterina Felice Bohen in favour of Tina Louise Bohen and Angela Marie Bohen.' 'Each of Tina Louise Bohen and Angela Marie Bohen to be...