Wiltshire v Wiltshire & 2 Ors [2005] NSWSC 458

Wiltshire v Wiltshire & 2 Ors [2005] NSWSC 458

The plaintiff, an 86-year-old widow after a 64-year marriage, had worked hard on the farm, helped pay it off, supported and cared for the deceased, and had minimal assets and significant ill health. The will's right of residence was inadequate because she was no longer living on the farm and needed secure accommodation, financial independence and funds for medical, accommodation and contingency needs. Although the estate could otherwise justify giving her the whole estate, her limited life expectancy made a legacy of $485,000 in lieu of the will provision appropriate.

Jurisdiction
Australia
Judgment Date
09 May 2005
Procedural Posture
Application Under the Family Provision Act in Respect of the Estate of John David Wiltshire / Judgment After Hearing
Outcome
The plaintiff was awarded a legacy of $485,000 out of the estate in lieu of the provision made for her in paragraph 4 of the will.
Legal Topics
['family Provision' "widow's Provision" 'adequate and Proper Provision' 'right of Residence' 'legacy From Estate' 'costs From Estate']
['succession' 'equity'] ['family Provision' "widow's Provision" 'adequate and Proper Provision' 'right of Residence' 'legacy From Estate' 'costs From Estate']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application Under the Family Provision Act in Respect of the Estate of John David Wiltshire / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the provision made for the deceased's widow under the will was inadequate for her proper maintenance, education and advancement in life." 'What provision should be made for the plaintiff from the estate in lieu of the right of residence in paragraph 4 of the will.' 'Whether a life estate or right of residence was an appropriate provision for the plaintiff in the circumstances.']

Ratio Decidendi

The plaintiff, an 86-year-old widow after a 64-year marriage, had worked hard on the farm, helped pay it off, supported and cared for the deceased, and had minimal assets and significant ill health. The will's right of residence was inadequate because she was no longer living on the farm and needed secure accommodation, financial independence and funds for medical, accommodation and contingency needs. Although the estate could otherwise justify giving her the whole estate, her limited life expectancy made a legacy of $485,000 in lieu of the will provision appropriate.

Court Disposition

The plaintiff was awarded a legacy of $485,000 out of the estate in lieu of the provision made for her in paragraph 4 of the will.

Orders

  • ['In lieu of the provision for the plaintiff in paragraph 4 of the will of the deceased, the plaintiff receive a legacy of $485,000.' "Interest will run on the legacy at the rate provided for under the Wills, Probate and Administration Act if it is not paid within three months of today's date and on and from that...