Sanity prevails as Wilcox v Wilcox is overturned on appeal

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Wilcox v Wilcox involved a claim by two grandsons against their grandfather’s will. The grandfather’s estate was worth around $5.5 million and was left mostly to his only daughter who was the mother of his two grandsons. Justice Pembroke, after being quite critical of the grandsons and the merit of their claim, made an order of $387,000 in favour of one of the grandsons and ordered that costs were to be borne by the estate.

The estate appealed and the NSW Court of Appeal has overturned the original judgment and the costs order. So, now the grandson receives nothing and has to pay nearly all of the estate’s costs.

All of the Judges of the Court of Appeal were somewhat critical of the decision of Justice Pembroke, however, the main judgment, which was delivered by Justice Barrett, best summed up the merits of the grandsons’ cases when he stated (at paragraph 128) that “The respondent was very fortunate that the judge did not simply dismiss the family provision claim after the first hearing”.

Sadly, however, I fear this may not be the last we hear from the unsuccessful grandson as his mother died after lodging her appeal and was not alive to see justice and the true intent of the Family Provision legislation prevail. Depending on her assets and the contents of her will we may see her son back in the Supreme Court before too long.

Brendan Cockerill is a Business and Succession Lawyer at DDCS Lawyers, 18 Kendall Lane, NewActon, Canberra ACT 2601 and can be contacted on (02) 6212 7600 or at estates@ddcslawyers.com.au.

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