In Davidson v Sampson [2012] NSWSC 481, the New South Wales Supreme Court ruled in favour of Tobias Boorne Davidson (“Toby”) a minor, the son of the late Penelope Jane Boorne (“Penny”) in his claim for provision out of the estate of his late mother under the Succession Act 2006.
The Court considered whether a property which was not owned by Penny could be designated as notional estate (in other words, brought into the estate to meet Toby’s claim).
Summary of the Case
Penny Boorne passed away on 12 September 2010 from a terminal illness, leaving behind her husband, Steven Sampson, to whom she bequeathed her entire estate through a will made in 2008 and her son Toby. Toby, Penny’s only child from her previous de facto relationship with Neale Davidson (‘Neale’), received no provision from his mother’s estate. He was just 13 years old at the time. It was claimed that he had financial needs for his education and general upbringing.
Penny’s estate consisted of cash, superannuation, and personal belongings, valued at around $230,000. However, a large part of the dispute focused on a property at Wollstonecraft, purchased by Penny and Steven. Penny’s previous property in Cremorne, which she had retained after separating from Neale, was sold to fund a substantial portion of the new property. Despite the significant financial contribution Penny made to this purchase, the title was held solely in Steven’s name. There was evidence that Penny did this to avoid a claim by Neale. This became a key factor in Toby’s legal claim, as he sought recognition of his mother’s contribution to the property as part of her notional estate.
Family Dynamics
Neale did not make a claim on the estate but acted as tutor for his son in the proceedings, arguing that Penny had not made proper and adequate provision for Toby. Penny and Neale had shared a long-term relationship, and after their separation, she kept the Cremorne property. Penny later married Steven in 2008, and the sale of the Cremorne property helped fund the purchase of the Wollstonecraft property.
Whilst Penny had previously made wills that included Toby, her final will left everything to Steven. Despite this, there was evidence that Penny had intended for Toby to be provided for, and Steven had verbally promised to ensure Toby would be looked after. Penny and Steven had informally agreed that Steven would make a will leaving 75 percent of whatever equity was left in the Wollstonecraft property upon his death to Toby since Penny had contributed around 75 percent of its purchase price. Penny and Steven contemplated that Steven may need to sell the property to access funds to live on at some point in the future, and in that case Toby would receive 75 percent of any downgraded property from Steven’s estate. However, with no provision in Penny’s will for Toby, there was no guarantee that Steven would abide by the agreement.
Court’s Decision
The Court ruled that Penny had a moral obligation to provide for her son, especially given his young age and financial dependency. The evidence showed that it was Penny’s intention that Toby be provided for. The judge determined that 75 percent of the value of the Wollstonecraft property, which was largely funded by the sale of Penny’s previous home, should be treated as part of her notional estate. This ruling allowed Toby to claim a share of the property (as part of his mother’s estate) despite it being held in Steven’s name.
Toby was awarded 60% of the proceeds from the future sale of the Wollstonecraft property, ensuring his long-term financial needs would be met. In addition, Toby was granted a lump sum of $150,000 to cover immediate expenses, which would be held in trust until he turned 21. This decision balanced Toby’s needs with Penny’s intentions and ensured that Steven retained a portion of the estate.
The court acknowledged the emotional complexities of the case, including Steven’s role as Toby’s stepfather and his expressed commitment to caring for him. Toby had remained living with Steven in the Wollstonecraft property following his mother’s death. Nonetheless, the Court recognised that circumstances change and despite Steven’s best intentions, Steven’s will did not reflect the agreement between he and Penny as to what Toby would receive on Steven’s death, in that if Steven did downgrade the Wollstonecraft property, any subsequent property and remaining proceeds at the date of Steven’s death would form part of the residue of his estate which was to be shared between Tony and Steven’s two sons. In that case, Tony would end up with much less than intended. Additionally, Steven had since re-partnered with the mother of one of Tony’s school friends, who were now living in the Wollstonecraft property with Steven and Toby. The judgment ensured Toby’s financial security while respecting Penny’s contribution to the family’s assets.
How We Can Help
If you or someone you know has been left out of a will or believes they have not been adequately provided for, it’s important to seek legal advice. At The Law Office of Conrad Curry, we specialise in family provision claims, ensuring that individuals receive the support they are entitled to under the law. Contact us for a free consultation to discuss your case and explore your legal options.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.
