Why an Experienced Estate Lawyer Matters: Lessons from Perry v Perry [2021] NSWSC 1669

When it comes to planning your estate, many people assume that a basic will or a do-it-yourself kit will suffice. But as the Supreme Court decision in Perry v Perry [2021] NSWSC 1669 reveals, inadequate estate planning and a lack of legal guidance can lead to decades of dispute, fractured families, and enormous legal costs. This complex and drawn-out case offers critical insights into why estate planning should always involve a skilled and knowledgeable lawyer—especially when it comes to drafting documents and setting out trustee powers.

The Perry Family: A 45-Year Legal Saga

Russell Perry died tragically young in 1975, leaving behind his wife Anne and their three small children. He died intestate, meaning he had no will. His widow Anne was appointed administrator of his estate, which primarily consisted of a half-share in a rural property known as the Fernmount land. The children were each entitled to two-ninths of the estate, with Anne entitled to one-third.

What followed was 45 years of informal family arrangements—referred to in the case as the "family deal"—which operated without formal legal oversight or adherence to the principles of estate administration. The property was used for housing, farming, and eventually even subject to development approvals, all while the estate remained formally unadministered. Eventually, one of the children, Tanya, brought proceedings against Anne and her siblings, alleging maladministration and seeking a formal accounting.

Key Legal Lessons for Estate Planning

1. Don't Rely on Informal Family Agreements

The "family deal" may have been well-intentioned, but it lacked clarity, documentation, and legal enforceability. Informal understandings about who was entitled to what and how the estate should be used became a breeding ground for conflict. By the time the case reached court, decades had passed, memories had faded, and significant property dealings had occurred without clear records.

Lesson: Always document family agreements clearly and ensure they align with the formal administration of the estate.

2. Executor Duties Are Serious and Ongoing

Anne, as administrator, was subject to the duties of a trustee, including the obligation to act impartially and in the best interests of all beneficiaries. Over the years, she used estate assets to raise and support the children, which the Court acknowledged may have been appropriate in the context of her responsibilities. However, because there was no formal accounting or legal oversight, these decisions became highly contentious.

Lesson: Executors and administrators must understand their duties, keep detailed records, and seek legal advice to avoid claims of maladministration.

3. Trustee Powers Must Be Clearly Defined

A significant issue in the case was whether Anne had authority to use estate funds for the maintenance and education of the children. The Court eventually confirmed that such powers could be exercised, particularly under the Trustee Act 1925 (NSW), but a formal trust instrument or will could have clarified this at the outset.

Lesson: Ensure your will or trust deed clearly sets out trustee powers, especially regarding maintenance and advancement for minors.

4. Delays Create Evidentiary Nightmares

The Court noted the extreme difficulty in resolving the dispute due to the passage of time and lack of contemporaneous documentation. Witnesses were asked to recall conversations from 40 years ago. There were few written records, and many of the decisions made during the administration of the estate had never been recorded formally.

Lesson: Timely administration, regular distributions, and thorough documentation are essential to prevent future disputes.

5. Blurring Family and Estate Assets Leads to Conflict

Over the years, the Fernmount property was improved and used by different family members, sometimes as a home, sometimes for farming, and eventually as part of a development project. However, ownership remained in the estate. Loans were taken out using the property as security, mortgages were granted without full consent of all beneficiaries, and profits were not properly accounted for.

Lesson: Avoid mingling personal and estate assets. If beneficiaries are to use estate property, formal arrangements should be documented, and all beneficiaries should provide informed consent.

6. Development and Contributions Must Be Properly Tracked

Tanya and her sister Louise obtained a development approval for eco-tourism accommodation on the Fernmount land, which arguably increased its value. However, because there were no formal agreements documenting the joint venture or how the increase in value would be allocated, Tanya later sought a constructive trust over the improved value.

Lesson: If estate assets are to be improved, developed or invested in by beneficiaries, agreements about contributions and entitlements must be documented and legally enforceable.

The Cost of Poor Estate Planning

The Perry case is a cautionary tale of what happens when estate planning is left to chance. A grieving widow, young children, and valuable property were left without legal structure or oversight. What began as an informal family arrangement ended in lengthy, expensive, and deeply emotional litigation that fractured relationships.

Had Russell Perry made a valid will and obtained legal advice about trustee powers, estate distribution, and potential future uses of the property, much of this conflict could have been avoided. Likewise, had Anne, as administrator, received legal guidance early in the process, she might have taken steps to distribute the estate and formally document her decisions, shielding herself from later criticism.

Why You Need an Experienced Estate Lawyer

An experienced estate lawyer does more than draft a will. They help you:

• Choose appropriate executors and trustees

• Define trustee powers clearly to deal with minor children and specific assets

• Structure your estate to avoid disputes and minimise tax

• Identify potential risks or conflicts and manage them through legally sound provisions

• Ensure that the administration process will be clear, lawful, and efficient

Estate planning isn’t just about death—it’s about setting your loved ones up with clarity, security, and protection. The cost of doing it right is minimal compared to the emotional and financial toll of a dispute like Perry v Perry.

Final Thoughts

If you own property, have children from a current or previous relationship, or want to avoid placing your loved ones in the middle of a future legal battle, take the time now to plan properly. Work with a knowledgeable estate lawyer who understands the law, the potential pitfalls, and how to safeguard your intentions.

Because as Perry v Perry so clearly shows: when it comes to your estate, informal arrangements and good intentions are simply not enough.