Estate Litigation (Family Provision) Case Note: Oswell v Jones & Ors [2007] QSC 384

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The case of Oswell v Jones & Ors [2007] QSC 384 is a recent example of the Court responding to prevailing community attitudes and to the need for court orders in Family Provision & estate litigation (Estate / Will disputes) to be practical and articulate with current legislation.

Brief Relevant Facts

Here, the applicant was severely disabled with cerebral palsy.

The applicant was receiving five social security benefits:

  • Disability Support Pension (means tested);
  • Pensioner Concession Card (conditional upon entitlement to receive pension);
  • Medical Aids Subsidy Scheme (conditional upon entitlement to receive pension);
  • Adult Lifestyle Support Package (not means tested and paid by Disability Services Queensland directly to the Cerebral Palsy League); and
  • Subsidy by the Department of Public Housing (means tested).

The Issue in Dispute

The Court was concerned with the paucity (the presence of something in only small or insufficient quantities or amounts) of the provision that the father had made to his daughter and considered what relevance the provision of social security had to the question.

The Court’s Observations

His Honour, Chesterman J observed, at paragraph 50, that:

  • the availability of a pension or social benefit should be taken into account by the Court where the available resources are not sufficient, particularly in small estates;
  • it may be appropriate for those benefits to continue to support the applicant (in whole or in part);
  • the award of the Court can be moulded to allow these benefits to continue;
  • social benefits are legitimate, involve no social stigma and are not disapproved of by the Court; and
  • the Court disapproves of this approach being used in wealthy estates where the estate can meet the needs of the applicant’s maintenance, education and advancement.

His Honour then went on to observe, at paragraph 51, that:

  • the estate was substantial but not huge by the standards of the day;
  • the estate was not sufficient to make adequate provision for the applicant without recourse to social benefits. In other words, even if the estate were wholly consumed by the applicant even then she may not have been provided adequate provision for life;
  • it was better that the applicant continue to receive benefits allowing some of the estate to be provided in the manner the testator intentioned; and
  • a special disability trust was the only option available to prevent the applicant from losing her benefit.

The Court’s Decision on Estate Litigation

Accordingly, His Honour, at paragraph 81, made an award from the estate to the maximum amount available under the law (at that time) of $500,000.00 into a special disability trust for the applicant (such trusts were only available from 20 September 2006).

Our Brisbane Estate Litigation lawyers are able to advise and assist,

Whether you are seeking to make a claim for provision, or defend against one. Contact us today on (07) 3252 0011 about a fixed fee price for an initial consultation with one of our Brisbane Estate Litigation Lawyers.