Not Happy with your Parent's Last Wishes

Not happy with parentss last wishes

When a person dies and the provisions of their Will fail to make adequate provision for the proper maintenance and support of the Deceased’s spouse, child or dependant, section 41 of the Succession Act 1981 (Qld) gives the Court power to make an order for provision or further provision out of the Deceased’s Estate. This is known as a Family Provision Application.

Determining a Family Provision Application is a two-stage process. It is necessary for the Court to decide firstly, whether the provision made was inadequate for the Applicant’s proper maintenance, education and advancement in life and secondly, if yes, then what provision ought to be made. Relevant factors include:

  • The Applicant’s financial position;
  • The size and nature of the Deceased’s Estate;
  • The relationship between the Applicant and the Deceased; and
  • The relationship between the Deceased and other persons who have legitimate claims.

It was formerly the case that able-bodied adult children, particularly males, had to show a special need in order to successfully challenge a parent’s will. However, the Courts in recent times have modified their approach.

Darveniza & Darveniza

The Deceased’s adult son, Steven, brought a Family Provision Application as a result of his exclusion as a beneficiary from his father’s Will. The Deceased had seven living children from three different relationships, three of whom were awarded further provision out of their father’s Estate. The Estate was worth around $27 million. Steven’s personal wealth had diminished from about $3.8 million at the date of his father’s death to approximately $2.5 million at the time of the trial.

The Judge referred to an earlier case where it was said that “decisions in the past show that Judges formerly took a very limited view of the appropriate provision to be made, for example, for able-bodied adult sons and a limited view of the appropriate provision for married daughters. These decisions belong to past times and do not express the values of the present age”.

It was ordered that further provision be made out of the Estate by payment of a lump sum of $3 million to Steven.

Lowe & Lowe

A Family Provision Application was commenced by the Deceased’s adult son, John who was 61 years of age. Pursuant to his father’s will, John had been left one-third of his father’s company shares worth $214,666.00, however, his interest was to be held in a special disability trust.

The Court held that the Deceased did not make adequate provision for the proper maintenance and advancement in life of John under the terms of his Will and, therefore, ordered that John receive a lump sum of $545,000.00, which was payable direct to him.

Conclusion

If you believe that you have not received a fair entitlement out of a loved one’s Estate, we recommend that you obtain legal advice.

For more information

Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza and Ors [2014] QSC 37

Lowe & Lowe [2014] NSWSC 371

WARNING

This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.

Liability limited by a scheme approved under professional standards legislation.

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