In the recent case of Baird v Harris, the Supreme Court of New South Wales certainly thought so.
This case concerned the estate of a deceased man who had 2 adult children, one of whom suffers from Autistic Spectrum Disorder. The deceased’s estate consisted of a property near Lake Macquarie, cash, a caravan, a motor vehicle, and a motor cycle, with a total value of $497,200. In his Will, the deceased left the property and the motor vehicle to his partner, a cash legacy of $50,000 to each of his children, the caravan to his daughter, the motor cycle to his son, and the rest of the estate to his partner.
The Court held that:
- the son was an “eligible person” as defined in section 57 of the Succession Act;
- looking at the son’s financial and material circumstances, adequate provision for his proper maintenance and advancement in life was not made by his deceased father;
- consideration then needs to be given to the son’s financial position, the size and nature of the deceased father’s estate, the relationship between the son and his deceased father, as well as the relationship between the son and
“other persons who have legitimate claims upon the deceased’s bounty and the circumstances and needs of those other persons”.
- the Court must made a determination “according to the feeling and judgment of the fair and reasonable man in the community, the spokesman of which is, and must be, the court itself”.
- the son was incapable of adequately providing for himself, and it was likely that, because of his medical conditions, he will never be able to do so.
- therefore, the son should receive additional provision by way of a lump sum which would “enable him to provide for exigencies of life and provide a buffer against future contingencies”.
As a result, the Court ordered that the son was entitled to the benefit of 40% of the net proceeds of sale of the deceased father’s property.
So what does this mean for parents who are preparing their Wills?
If you have children from an earlier relationship, it may not be enough to leave a “token gift” to your children, with the rest and residue of your estate going to your current partner, particularly if your children’s particular circumstances (as well as the size of your estate) would warrant a larger distribution being made to them.