The recent case of Colbourne v Colbourne [2020] involved two applications in proceedings brought pursuant to s 59 of the Succession Act 2006 (NSW). The Plaintiff was an 89-year-old man with dementia, who required substantial and ongoing care in an aged care facility. He was also widower, and shortly before his late wife’s death, she updated her will and left her estate to their two children. Adam Colbourne, one of the executors, who renounced his role as executor, and Sarah Colbourne, the other executor was the Defendant in the proceedings.

The first application was made jointly by the Plaintiff and Defendant for approval of a proposed settlement of the proceedings, to enable to Plaintiff to receive the whole of the distributable proceeds of his wife’s estate.  The second application comprised a notice of motion by the Official Trustee in Bankruptcy as the Trustee of the bankrupt estate of Adam Colbourne – to be heard in opposition to the proposed settlement. The Official Trustee submitted that the plaintiff had sufficient funds to satisfy his care needs, and that approval of the settlement should be withheld because the Official Trustee wished to participate in the distribution of the deceased’s estate in equal shares with the Defendant.

Ultimately, the Court held that the deceased had a moral obligation to adequately provide for the Plaintiff in her will, as the mutual care provided by their marriage did not cease when the Plaintiff entered a nursing home. The Court rejected the Official Trustee’s submission, because it would be inconsistent with the Plaintiff’s reasonable expectations following the 58 year marriage of mutual support and approved the settlement.

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