Introduction

A recent article in the Sydney Morning Herald brought attention to a significant inheritance dispute involving a $20 million farming property and a father’s decision to provide a substantial early inheritance to his youngest son. This case, known as Bushell v George [2025] NSWSC 1347, illustrates the complex legal battles that can arise when a parent transfers major assets during their lifetime, prompting other beneficiaries to contest the will through a family provision claim.

The judgment highlights that gifting assets before death does not automatically protect them from being clawed back as notional estate under NSW law. This guide examines how the court assesses financial need and the testator’s intentions, offering vital insights for those navigating estate planning risks or considering seeking legal advice regarding a potential claim.

Overview of the Bushell v George Inheritance Dispute Case

Details of the Early Inheritance & Farm Transfer to the Son

The inheritance dispute in Bushell v George [2025] NSWSC 1347 centred on farming properties in the Riverina region of New South Wales. Over his lifetime, Wayne Bushell had amassed eight parcels of land totalling approximately 3,011 hectares. At the time of his death, those assets were valued at around $20 million.

Before he passed away, Wayne structured a sequence of agreements that effectively served as an early inheritance for his youngest son, Abraham (Abe). These arrangements comprised:

• Contract of Sale: In November 2020, Wayne and Abe entered into a contract for the sale of the entire farm at a purchase price of $13 million.
• Loan Agreement: Under a related loan agreement, that purchase price remained outstanding as an interest-only loan.
• Loan Variation: In June 2021, the loan was varied to forgive most of the debt—Abe was required to repay just $1.2 million, with the remainder officially termed a “gift.”

Consequently, Abe acquired full ownership of the farmland and the farming business before his father’s death, leaving a significantly smaller estate to be distributed under Wayne’s will.

The Family Provision Claim Made by the Adult Child Beneficiaries

Wayne’s final will, executed in May 2021, left James and Hannah legacies of $600,000 each. These legacies were to be paid in five equal instalments over five years, funded by the $1.2 million Abe was obliged to pay into the estate. Believing this provision to be inadequate, James and Hannah brought a family provision claim under the Succession Act 2006 (NSW).

Their claim focused on two primary legal arguments:

• Proprietary Estoppel: They alleged that, for decades, their father had represented the farm would be split equally among the three siblings. They maintained they relied on these promises to their detriment.
• Notional Estate Designation: They sought an order treating the transferred farmland as part of Wayne’s estate. Under NSW law, this would enable the court to include those assets in the distributable estate and, if their claim succeeded, make further provision from them.

Ultimately, their application asked the court to “claw back” the farm’s value into the estate to ensure adequate provision for James and Hannah.

How the Court Assessed the Family Provision Claim for Each Adult Child

Why the Court Found Inadequate Provision for the Daughter

In Bushell v George [2025] NSWSC 1347, the court determined that the $600,000 legacy left to the daughter, Hannah, was not adequate provision for her proper maintenance and advancement in life. Specifically, the judge found that her financial needs were greater than her brother’s—a key factor in family provision claims.

The court’s decision was based on several aspects of her specific circumstances:

• Family Responsibilities: Hannah was the main income earner for her family, which included her husband and two young children.
• Financial Position: Compared to her brother James, she had significantly less in superannuation and held no investments.
• Household Debt: Although her legacy could cover a large portion of their mortgage (approximately $610,780), the initial instalments had been used for other household expenses, leaving her with considerable debt.
• Relationship with the Deceased: The court noted that Hannah’s relationship with her father had shown some degree of recovery from their earlier estrangement, distinguishing her position slightly from her brother’s.

After balancing Hannah’s financial need against her father’s clear intention to keep the farm intact, the court concluded that an additional provision of $300,000 was warranted. This brought her total provision from the estate to $900,000.

Reasons the Claim Being Made by the Elder Son Was Dismissed

By contrast, the court dismissed the family provision claim made by the elder son, James, finding that the $600,000 inheritance constituted adequate provision. This outcome underscores that in an inheritance dispute, a “fair” outcome is not always an “equal” one, as the court must assess the unique financial need of each claimant.

The judge based this dismissal on James’s strong financial standing and stability. Key factors included:

• Excellent academic and professional qualifications.
• Stable and high-income employment within the Commonwealth public service.
• Significant assets, including superannuation savings and an investment property.
• Comfortable financial position, since he and his partner owned their home and could easily service their debts.

The court concluded that the $600,000 legacy was an appropriate and sufficient contribution toward his financial needs—covering a substantial portion of his mortgage debt. Consequently, his claim for further provision to purchase a farm was rejected, as his maintenance and advancement in life were not compromised by his inability to do so.

The Impact of Estrangement on a Will Dispute

Although the court carefully considered the estrangement between the father and his elder son, James, it ultimately found this was not the decisive factor in assessing the adequacy of his inheritance. While acknowledging the father’s prejudices—such as intolerance of James’s sexuality and a belief that he had sided with his mother during a divorce—these were not the primary drivers of his testamentary decisions.

Instead, the judgment highlighted that the father’s most significant and overriding concern was his sincere and abiding interest in ensuring that the farm was not split up. This desire to preserve the family farm for the youngest son, Abe, was a rational and consistently held wish that heavily influenced the structure of his will.

As a result, the court found that leaving James a $600,000 legacy was a decision made despite the breakdown in their relationship, not because of it. This demonstrates that while the impact of estrangement on family provision claims is a relevant factor for the court to consider, it does not automatically guarantee a successful outcome—particularly when weighed against a testator’s clear and rational intentions for their estate.

Legal Risks of Giving an Early Inheritance in New South Wales

Understanding How Notional Estate Laws Affect an Early Inheritance

In New South Wales, gifting assets to a child during your lifetime does not guarantee they are safe from a future inheritance dispute. Under the concept of a “notional estate” in the Succession Act 2006 (NSW), the court can treat certain lifetime transfers as part of the deceased’s estate. Consequently, assets given away can potentially be “clawed back” to satisfy a family provision claim.

These notional estate provisions exist to ensure eligible persons—such as:

• a spouse
• a child
  —can receive adequate provision, even if the deceased attempted to reduce the estate’s value before death.

For example, in the Bushell v George [2025] NSWSC 1347 case, a father transferred multimillion-dollar farming properties to his son before he died. His other children then launched a family provision claim, seeking to designate the transferred land as notional estate to fund their claim for a larger share. This illustrates how an early inheritance can become the central focus of a will contest.

Distinguishing Between a Gift & a Loan in Estate Planning

Clearly documenting whether an early inheritance constitutes a gift or a loan is a critical aspect of estate planning, with significant consequences for how the asset is treated and the risk of future disputes. Specifically, structuring the advance as a loan—with a formal agreement—provides greater protection and clarity for everyone involved.

Treating an early inheritance as a loan offers several advantages:

• Protection from Creditors: If the child who received the funds faces bankruptcy, a properly documented loan is less likely to be claimed by their creditors than an outright gift.
• Safeguarding in Divorce: In the event of a relationship breakdown, a loan typically falls outside the asset pool in a Family Court property settlement, protecting the funds from division with an ex-spouse.
• Equalising the Estate: A will can stipulate that the loan is forgiven upon the parent’s death, effectively becoming that child’s inheritance. The remaining assets can then be distributed to other beneficiaries to ensure a fair outcome.

However, without clear documentation, ambiguity can lead to conflict. It is therefore essential to seek legal advice so that any financial assistance is structured and recorded in line with your overall estate planning intentions.

Key Takeaways for People Considering Contesting a Will

Proving Financial Need & Inadequate Provision

Success in a family provision claim in NSW primarily depends on demonstrating genuine financial need, rather than simply arguing that a will is unfair. The court’s role is to determine if the will makes adequate provision for an applicant’s proper maintenance and advancement in life.

The outcome of Bushell v George [2025] NSWSC 1347 provides a clear illustration of this principle. In that case, the court awarded the daughter, Hannah, further provision because she demonstrated clear financial pressures. Key factors included:

• A significant mortgage on her family home
• Her position as the primary income earner for a household with two young children
• Fewer investment assets and less superannuation compared to her brother

In contrast, the elder son James’s claim was dismissed. The court found that the $600,000 legacy was adequate provision because he was in a stable financial position, evidenced by:

• A high income
• Substantial assets
• Manageable debt

This highlights that an adult child must prove their specific circumstances warrant further support from the estate.

The Importance of the Testator’s Intention to Keep Assets Intact

When assessing an inheritance dispute, the court carefully weighs the applicant’s financial need against the testator’s intentions for their estate. A clear and rational wish to preserve a significant asset—such as:

• A family farm
• A business

—can heavily influence the outcome.

In Bushell v George [2025] NSWSC 1347, the father’s “sincere and abiding interest in ensuring that the farm was not split up” was a central factor in the court’s decision. The judge concluded that his primary motivation was to keep the farming business viable for his youngest son, who had worked on the land for years. As a result, the provision awarded to the other beneficiaries was limited to an amount that would not force the sale of the land.

Legal Costs & Risks in an Inheritance Dispute

Contesting a will involves significant financial risks, and there is no guarantee that legal costs & fees will be paid from the estate. If a family provision claim is unsuccessful, the court may order the applicant to pay:

• Their own legal costs
• Those of the defendant in the proceedings

This risk was highlighted in the case of Sgro v Thompson [2017], where an unsuccessful daughter was ordered to pay over $90,000 in legal costs for both parties. Similarly, in the Bushell v George matter, the dismissal of James’s claim exposed him to the possibility of an adverse costs order.

Before commencing an inheritance dispute, it is crucial to seek legal advice to understand the potential financial consequences of an unsuccessful claim.

Conclusion

The recent inheritance dispute in Bushell v George [2025] NSWSC 1347 highlights the significant legal risks of giving an early inheritance, as NSW notional estate laws can claw back assets to satisfy a family provision claim. This case underscores that the court assesses each adult child’s financial need on its specific circumstances and weighs it against the testator’s intentions for their estate.

Navigating the complexities of estate planning and family provision claims requires specialised legal advice to avoid a costly will dispute. For trusted expertise on how to structure your will or make a claim, contact the family provision claim lawyers at PBL Law Group in Sydney NSW to ensure your specific circumstances are properly addressed.

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