Tasmanian man secures $100k windfall over brother after challenging mother’s will

A 62-year-old Tasmanian man who was overlooked in his mother’s will in favour of his 57-year-old disability pensioner brother has been awarded $100,000 by the Supreme Court.

Tasmanian man Michael Jones has successfully challenged his mother’s will. Picture: Richard Jupe

A 62-year-old Tasmanian man who was overlooked in his mother’s will in favour of his 57-year-old disability pensioner brother has been awarded $100,000 by the Supreme Court, following a successful legal challenge.

After receiving nothing from the $460,000 estate of Mavis Pauline Jones, upon her death in 2022, Michael Jones applied for “adequate provision” of support under the Testator’s Family Maintenance Act.

Associate Justice Michael Daly found that in a will executed on 14 January 2000, Ms Jones left the residue of her estate to her son Shane Jones, but had made no mention of Michael Jones.

The court heard that although Michael Jones owned his own mortgaged home in Hobart and was employed in a full-time role, his earning capacity had been adversely impacted by health problems suffered in the years since the will was written.

Statue of justice holding scales

His Honour said that although Michael Jones had failed his obligation to disclose “as fully and as frankly as possible” all details of his family’s financial and material circumstances during the course of proceedings, his omissions were not significant enough to justify a refusal of his application.

While Shane Jones had a strong competing claim on the estate after living with, and caring for, his mother since moving in with her in 2000, His Honour said the Act was not directed at “securing a fair outcome as between family members”.

“When [Ms Jones] made her will, the applicant was not in any financial need. He could support himself comfortably and was likely to be able to do so for the rest of his life,” Associate Justice Daly said.

“At the date of her death, the situation was different.

“At that date, a wise and just testatrix would have given close consideration to the fact that the applicant’s health had worsened over the years and at that date had a significant impact on his present and future capacity to work and earn money.

“I am satisfied that at the date of the testatrix’s death, the applicant was left without adequate provision for his proper maintenance and support.”

His Honour said that in assessing the quantum of provision, the court needed to consider the economic circumstances of both the deceased and the applicant, and the size of the estate.

And while the court had to also consider any competing claims, Michael Jones did not need to demonstrate that his financial needs were greater than those of his brother, a disability support pension recipient with total assets of approximately $70,000.

“The applicant is the joint tenant of a home valued at over $675,000 with a mortgage of about $73,000,” His Honour said.

“He has about $50,000 in other assets inclusive of superannuation.

“He is capable of working but is probably working more hours than he should, given the state of his health.

“My assessment of all the circumstances relevant to the question of the proper maintenance and support for the applicant is that the sum of $100,000 amounts to adequate provision.

“An order will be made in those terms.”