Written by Christine Vrahas, Estate Litigation Solicitor at Owen Hodge Lawyers

Testamentary freedom … Australians have freedom to leave their property by their will as they wish with one exception. The exception is that a person must fulfill any moral duty to make proper and adequate provision for those whom the community would expect such provision to be made before they can leave money as they wish. It is only when a person has not fulfilled any moral duty to make proper and adequate provision for those who the community would expect such provision to be made, can the Court interfere and make adequate provision  for an eligible person’s proper maintenance and advancement.

In the matter of  VELLA -V- VELLA; VELLA V VELLA [2020] NSWSC 849, the deceased left one of her five children, a child with an intellectual disability, the sum of $2,000 and the deceased’s clothing.

The child made a claim for further provision out of her mother’s estate for her maintenance, education or advancement in life. The Judge was satisfied that the provision of $2,000 and the deceased’s clothing was inadequate for the following reasons;

  1. The plaintiff made an effort to maintain contact with her parents,
  2. She had an intellectual disability that means she is incapable of independent living and needs to be accommodated in a care facility for the rest of her life,
  3. She suffers from physical health problems,
  4. Her only source of income is a disability support pension as she is retired and has no capacity to work.  

The Judge found that the deceased did not fulfill her moral duty to make proper and adequate provision for those whom the community would expect (her own disabled child) and made an order that the plaintiff receive a sum in the amount of $150,000 to assist her to provide for herself for the remainder of her life, taking into account her intellectual disability and her need to live in assisted care facilities. 

If you have questions about what to leave your children in your will, or if you believe that your were not provided with adequate provisions in a will, contact Christine Vrahas at Owen Hodge Lawyers on 1800 770 780 or via email at ohl@owenhodge.com.au