This court case illustrates why these sorts of family provision matters should settle, particularly for a small estate.

The first 132 paragraphs deal with the facts.  From that, the Judge concluded that adequate provision had not been made for the reasons given in paragraphs 133 to 142.  Note that the test is not limited to maintenance, which equates to need, but also advancement.

Unfortunately, there are no hard and fast rules about what is adequate.

Then the Judge goes on to discuss how to exercise the discretion to make adequate provision.

Note paragraphs 144 and 145 about freedom of testamentary disposition, not being a question of fairness, notions of morality, etc.

The judge then looks at the competing needs from what was a small estate.

The judge found that Rory’s claim was more urgent than James’.

Note the costs incurred by Rory of $131k which is best avoided.  Presumably, James incurred similar legal fees.

With an estate of $567,298.11, which by 23 October had decreased to $355,839.50, a disproportionate amount was spent on legal fees.

Calderbank offers had been made.  Here is the subsequent decisions regarding costs which was made earlier this year

This decision is even harder to follow, but in summary, after 2 mediations, Rory made an offer to accept about $100k.  Since he ultimately obtained $150k, Rory was the successful party.  James was not.

The judge said that there was no reason why the normal rules should not apply, so costs followed the event, with James being ordered to pay Rory’s costs.  Further, a lot of affidavit material had been filed prior to Rory making the offer, and the judge found that it was unreasonable of James to reject that early offer.

Therefore James was required to pay Rory’s costs on a full indemnity basis from the date of the offer, which costs would have been substantial, leaving James with next to nothing from the estate and a potential liability.

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