A granddaughter, Justine Bosschieter, received $200,000 from her grandmother's estate. A court initially ruled this transfer should be set aside due to unconscionable conduct, but then made a family provision order in Bosschieter's favor, canceling her repayment obligation. This decision was appealed.
The NSW Court of Appeal overturned the lower court's decision. Justice Stephen Free stated that the original order was unreasonable and unjust, as it reduced the estate's value available to other beneficiaries by $200,000. The court found the original judge's assessment contained legal errors. The appeal court ordered Bosschieter to repay the $200,000 and pay legal costs.
The original ruling would have resulted in each of the four children inheriting $570,000, while Bosschieter would have kept the $200,000 she'd already spent. The overturned ruling grants each beneficiary (including Bosschieter) an equal share of approximately $610,000, minus the $200,000 Bosschieter already received.
The court considered that Bosschieter received substantial benefits as a carer for her grandmother, including the carerâs pension and reduced rent. The court also noted the state of the home after the granddaughter and her family vacated the property: it was left in a grossly dilapidated and uninhabitable condition.
In a decision in December last year, Supreme Court Justice Michael Slattery said Bosschieter âtook advantage of the deceasedâs position of special disadvantageâ and the transfer of the $200,000 âshould be set aside because of [her] ... unconscionable conduct in procuring itâ.
He ordered her to repay the money to the estate. However, Slattery went on to say that if Bosschieter was forced to repay the sum with interest and costs, âshe is likely to be left with very little with which she can make her way in lifeâ.
Ultimately, Slattery made a family provision order in Bosschieterâs favour that had the effect of cancelling out her obligation to repay the $200,000. This increased her overall share of the estate at the expense of the other four beneficiaries.
That order was set aside by the NSW Court of Appeal on Friday after the executor of the estate, one of Howittâs sons, lodged an appeal.
Justice Stephen Free, with whom President Julie Ward and Justice Jeremy Kirk agreed, said the economic effect of Slatteryâs order âwas to reduce the value of the estate available for distribution to the beneficiaries by $200,000 and require that amount to be provided to Justineâ.
Each of Howittâs four children would have been entitled to $570,000, or one-fifth of the sale proceeds of the family home. They would not have received a share of the $200,000.
Bosschieter, âat least nominallyâ, would have received $770,000 from the estate, reflecting her $570,000 share of the sale proceeds from the home, and the $200,000 she had already spent and was not obliged to repay.
Free said Slatteryâs judgment was infected by legal error, âboth in determining that adequate provision for Justine had not been made under the 2021 will and in determining ⌠that it was appropriate to make a family provision orderâ in her favour for $200,000.
He added that âthe factual circumstances are such that the order ⌠was unreasonable and plainly unjustâ.
Free said that in the absence of the family provision order, each of the five family members would have been entitled to an equal share of the $3 million estate ($610,000) but Bosschieterâs payment would have been reduced to $410,000 to reflect the $200,000 she had already received.
The appeal court set aside the family provision order made by Slattery and ordered Bosschieter to pay legal costs.
Free noted Slattery had âfound that Justine had already obtained considerable benefits from her position as Margaretâs carer, including the carerâs pension and significantly reduced rentâ.
The court heard Bosschieter and her family did not vacate the Forestville home until November 2023, more than 20 months after her grandmotherâs death. Slattery had said photos showed it was left in a âgrossly dilapidatedâ and âuninhabitableâ state.
âThe proper inference to be drawn from the photographs of the detritus left behind by Justine and her family was that they expressed their resentment at being forced to vacate the property by leaving it in a state from which their contempt would be obvious, and which would maximise the cleanup costs to the estate,â Slattery said. Those costs totalled $55,000.
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