Wills & Estates Case Study

Victorian Supreme Court Case: Estate ordered to make provision for daughter despite relationship with father.

A recent landmark Supreme Court of Victoria case has compelled an estate to make provision for the deceased party’s daughter, despite a rocky relationship between the two.

This case is significant in that it highlights the unpredictability of court proceedings as well as the wide variety of factors the Court will consider when determining whether adequate provision has been made for a person in a will, such as the mental health of a claimant.

The basic facts of Joss v Joss [2020] VSC 424 (4 August 2020) are as follows:

Peter Joss and Jessica Joss had numerous disagreements during the former’s life and at the time of her father’s death, Ms Joss was not on speaking terms with her family. Despite this, the Court held that Mr Joss had a moral duty to provide for Ms Joss on the basis that he had financially supported her for many years.

Mr Joss’s will only made provision for his daughter should his wife pass before him. As Mr Joss’s wife survived him, the will made no provision for Ms Joss.

Ms Joss made an application for further and better provision out of her father’ s estate.

The court awarded Ms Joss a $2.4 million lump sum, giving weight to a variety of factors when considering whether Mr Joss had a moral duty to provide for Ms Joss, including:

  • previous financial support for Ms Joss;
  • Ms Joss’s financial resources, earning capacity and financial needs;
  • Ms Joss’s mental health;
  • any contributions by Ms Joss to her father’s estate; and
  • Ms Joss’s relationship with her father.

Significantly, the Court found that ongoing financial support of another person can give rise to a moral duty to make adequate provisions for that person within a will. This can be the case even where two parties had a dysfunctional relationship.

Takeaways from the case study

So, how might someone minimise the chance of their will being contested once they pass away? Below are a few general tips:

  • Have your will prepared by an experienced wills and estates lawyer
  • Prove your mental competency
  • Clearly explain your decision in the will

If you require any assistance with the preparation of your will or if you require yours to be updated, please contact the experienced team at Asparq Legal.

General Disclaimer:

The information contained herein is of a general nature only and is not intended to be relied upon nor is it a substitute for appropriate professional advice. Whilst all care has been taken in the preparation of the material, it is not guaranteed to be accurate. Individual circumstances are different and as such require specific examination. Asparq cannot accept liability for any loss or damage of any kind arising out of the use of or reliance upon all or any part of this material. Additional information may be made available upon request.

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