Straughen-Nicholson v Straughen [2019] NSWSC 1389

The Will

Roy Straughen had three children: Rodney, Vikki and Karen. In 2014, Roy made a will to give all of his assets equally between his three children.

Sadly, Karen died in January 2019 and Roy died shortly after in April 2019.

Karen’s daughter, Emma, brought a claim in the Supreme Court of NSW to determine whether Karen’s share in Roy’s estate should pass onto Emma since she was Karen’s daughter.

The Rules

Under section 41 of the Succession Act, if a person making a will gifts property to one of their children, and that child does not survive the will-maker by 30 days, the gift does not automatically fail. If the child also had their own children (the grand children), the gift will go to the grand children unless the will suggests otherwise.

The Decision

The Judge found that the will fell under all the requirements of section 41. Emma was given Karen’s share of the estate under the will.

This case serves as a reminder of how important it is to regularly review and update your will, especially after significant events such as a death in the family. By regularly reviewing and updating your will, you can ensure that your gift will go to the correct person. And, even if it would end up going to the next person you wanted, you would save your beneficiaries a lot of time and money in legal fees they would have spent to have it decided by a Judge.