James v James [2006] NSWSC 1151 (27 October 2006)

This case is in relation to an application for a Family Provision Claim under the Estate of the deceased who died aged 77 years. The deceased was survived by his widow, who was his wife, the defendant, his son from a previous marriage, the plaintiff, and a daughter who did not bring a claim. Turner Freeman acted for the son.

Under his Will, the deceased named his wife executor and sole beneficiary of his estate and did not leave any provision for his son.

The son was 47, single, living in Housing Commission and received a disability pension which left him approximately $306.00 per fortnight after rent was paid. He also was in poor health.

Alternatively, the wife was 65, in good health, lived on her own property and lived modestly but comfortably. The Court considered the wife’s future comfort in coming to its decision.

The relationship between the deceased and the son was limited and there was very little contact; however, the Court determined that the deceased ought to have made provision for his son given all the circumstances of the case, as it would be something the community as a whole would expect.

An order for $140,000 to be paid to the son from the Estate was made by the Court.

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