In a decision in December last year, Supreme Court Justice Michael Slattery said Bosschieter “took advantage of the deceased’s position of special disadvantage” and the transfer of the $200,000 “should be set aside because of [her] … unconscionable conduct in procuring it”.
He ordered her to repay the money to the estate. However, Slattery went on to say that if Bosschieter was forced to repay the sum with interest and costs, “she is likely to be left with very little with which she can make her way in life”.
Ultimately, Slattery made a family provision order in Bosschieter’s favour that had the effect of cancelling out her obligation to repay the $200,000. This increased her overall share of the estate at the expense of the other four beneficiaries.
Appeal court overturns order
That order was set aside by the NSW Court of Appeal on Friday after the executor of the estate, one of Howitt’s sons, lodged an appeal.
Justice Stephen Free, with whom President Julie Ward and Justice Jeremy Kirk agreed, said the economic effect of Slattery’s order “was to reduce the value of the estate available for distribution to the beneficiaries by $200,000 and require that amount to be provided to Justine”.
Each of Howitt’s four children would have been entitled to $570,000, or one-fifth of the sale proceeds of the family home. They would not have received a share of the $200,000.
Bosschieter, “at least nominally”, would have received $770,000 from the estate, reflecting her $570,000 share of the sale proceeds from the home, and the $200,000 she had already spent and was not obliged to repay.
Free said Slattery’s judgment was infected by legal error, “both in determining that adequate provision for Justine had not been made under the 2021 will and in determining … that it was appropriate to make a family provision order” in her favour for $200,000.
‘Unreasonable and plainly unjust’
He added that “the factual circumstances are such that the order … was unreasonable and plainly unjust”.
Free said that in the absence of the family provision order, each of the five family members would have been entitled to an equal share of the $3 million estate ($610,000) but Bosschieter’s payment would have been reduced to $410,000 to reflect the $200,000 she had already received.
The appeal court set aside the family provision order made by Slattery and ordered Bosschieter to pay legal costs.
Free noted Slattery had “found that Justine had already obtained considerable benefits from her position as Margaret’s carer, including the carer’s pension and significantly reduced rent”.
Home grossly dilapidated
The court heard Bosschieter and her family did not vacate the Forestville home until November 2023, more than 20 months after her grandmother’s death. Slattery had said photos showed it was left in a “grossly dilapidated” and “uninhabitable” state.
“The proper inference to be drawn from the photographs of the detritus left behind by Justine and her family was that they expressed their resentment at being forced to vacate the property by leaving it in a state from which their contempt would be obvious, and which would maximise the cleanup costs to the estate,” Slattery said. Those costs totalled $55,000.
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