Creating a Will is not a task that should be completed once and locked away never to be looked at again during your lifetime. It is imperative that individuals update their Will to reflect their current circumstances and wishes. The case of Sutcliffe v Harper [2025] NSWSC 54 is a timely reminder of what can happen when financial and personal circumstances change but their will is not updated or changed. This case is explored below.
The Proceedings
The plaintiff, Mark Sutcliffe, brought proceedings in the Supreme Court of NSW claiming that his deceased mother, Bernice Sutcliffe, did not make adequate provisions in her will for his proper maintenance, education and advancement in life.
The mother prepared her last Will and testament along with a separate document recording her intentions underlying the provision her will in April 2015. The Will provided that after the specified gifts were paid, the rest and residue was to be paid to her daughter Lisa, the defendant (as to 60%) and her son Mark, the plaintiff (40%).
At the time of making this Will, the mother owned a house in Dural. In her separate testamentary document, she outlined the decision to divide her Dural property in a 60/40 split between her children was because she viewed that Mark loved her less and didn’t include her in his life.
In 2016, after the Will was made, the mother sold the Dural property and purchased a property together with Lisa and her husband as joint tenants at Kenthurst.
The mother died on 22 February 2023. Upon her passing, the mother’s interest in the property was passed to Lisa and her husband by right of survivorship, and did not form part of the estate. Additionally, the deceased mother’s superannuation did not form part of the estate but was split between Lisa and Mark.
Decision
Based on the evidence provided, the court ultimately held that the deceased mother’s Will and testamentary document made in 2015 did not reflect her circumstances and wishes at the time of her passing. Despite having inconsistent contact with his mother, it was found that Mark still had a close relationship with her.
It was held that the deceased mother intended for the Kenthurst property to go to Lisa and Mark was to have her remaining financial assets. Further, it was held that as Mark had a mortgage debt and no money for contingencies, his financial security would be enhanced if this intention was upheld.
In lieu of the 40% of the rest and residue of the estate, the court ordered that a provision be made of the estate of the deceased mother for the proper maintenance, education and advancement in life of the plaintiff in a lump sum of $171,426.
What can we learn from Sutcliffe v Harper
This case acts as a reminder that you should be reviewing your Will every few years to ensure that it reflects your current circumstances and wishes. If you acquire or dispose of an asset it is imperative that you update your Will and prepare a statement under s 100 of the Succession Act 2006 (NSW) to provide context and explanation about why you have made certain decisions.
If you need estate planning advice, contact the team at Cheney Suthers.