Several recent cases in NSW and Victoria have highlighted the difficulties that can arise in family provision claims by adult children.
In Piercy v Douras  NSWSC 1013 (9 August 2019 per Henry J), an adult son received no provision from his father’s estate.
The estate was valued at $4.1m at date of death. However, family law property orders were made between the deceased and his ex-wife, the applicant’s mother which reduced the estate to only $743K at the time of the hearing. That was to pass to the deceased’s second wife of a few weeks (total relationship less than 3 years in duration) who had limited assets & employment prospects.
The son and the father were estranged, but this was only for less than a year before the date of death and there was no disentitling conduct on the son’s part. There was an expectation the applicant would inherit from his mother. The son’s claim failed, and he had to bear his own costs.
In Firth v Reeves  VSC 357 (7 June 2019 per Dixon J), an elderly widow, Cecily, made a will leaving her estate to her daughters Glenda and Roseann. Under the will, Glenda was to receive two-thirds and Roseann the remaining one-third. When Cecily died in 2017, Roseann brought a claim seeking half of her mother’s estate. She contended that one-third was inadequate, and sought one-half of the estate.
The estate was worth $5.52 million when Roseann first brought her claim, but had increased to $8.15 million under the executors’ management by the time the case was heard. As a result, the one-third she ultimately stood to receive under the will was similar in value ($2.72 million) to what half the estate was worth at the time of her mother’s death ($2.76 million).
The Court found that Cecily’s will made sufficient provision for Roseann, and dismissed the claim. The Court found:
- Cecily did not have a duty to treat her daughters equally in her will. That the estate was in part derived from family inheritances did not increase Cecily’s moral obligation to her children, or oblige Cecily to leave her estate equally between them.
- Roseann’s claim failed as she could not establish need or any other consideration to warrant further provision. As the will left her an amount that was sufficient for her needs, the Court had no jurisdiction to change the distribution of the estate. This was the case even though the estate was relatively large.
In Wengdal v Rawnsley  NSWSC 926 (18 June 2019 per Hallen J), two sisters Jill and Susan were pitted against each other. Their mother had a small estate valued at $297k. She left Jill a gift which equated to $34k and the balance to Susan. Jill had for many years been independent, and self-sufficient. The mother had instructed the lawyer that Susan did everything for her and was the “only one who cares”. Whilst Jill had some needs, she had home (with a small mortgage), a car, superannuation and a secure income (by way of pension). The mother knew all of this. The Court dismissed the claim and ordered the plaintiff to pay the estate’s costs.
These cases highlight:
- The concept of fairness in the sense of “equality” between children has little bearing in family provision claims.
- In order to successfully challenge a parent’s will, adult children need to be able to demonstrate financial need.
- However, financial need alone is not enough. A Court can only award provision to the extent that is required for someone’s proper maintenance and support in all the circumstances. It cannot rewrite a will purely because the distribution is unequal between family members, or someone feels that the will is unfair.
Family provision legislation is designed to provide proper maintenance where a will or intestate distribution is inadequate for a person’s needs. While a parent generally has a moral obligation to provide for their children, this does not equate to a testamentary duty to treat their children equally.
However, if a parent does wish to dispose of their estate unequally between children, they should be very careful as there is always a risk of litigation. They should always get professional estate planning advice to reduce the risk of challenge.
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