McGowan v Waites

The dispute in McGowan v Waites arose between a daughter and her brother, both of whom were the surviving children of a deceased estate. The daughter, the plaintiff, sought a greater share of the estate than she was entitled to under the will of her father, who had died intestate. The estate's net value was approximately $537,000, with the sole beneficiary being the disabled adult son, the defendant. The plaintiff had assumed responsibility for the care and accommodation of the disabled son following the father's death. The court had to decide whether the plaintiff was entitled to an increased share of the estate under the Family Provision Act.

The court had to determine whether the plaintiff was in "need" due to the reasonable provision not being made for her maintenance, and whether it was just and equitable to make a different order. The court considered the extent of the plaintiff's need and the father's intentions, as expressed in the will, which provided a fund for the disabled son's care. The court also had to assess the likelihood of the plaintiff continuing to care for her brother and the possibility that the fund would be required for his maintenance.

The court found that the plaintiff was in need due to the estate's insufficient funds to make adequate provision for her and preserve a sufficient fund for alternative accommodation for the disabled son. The court also determined that it was just and equitable to make an order for the plaintiff to receive a larger share of the estate. The court considered the probability that the plaintiff would continue to care for her brother and that the fund provided for his care would not be utilised, but also acknowledged the possibility that those arrangements would fail, and the fund would be required for his maintenance. The court ordered that the plaintiff receive $100,000 from the estate, with the remaining balance to be held in trust for the disabled son.