This was a claim under the New South Wales equivalent of the Inheritance (Family Provision) Act.
The plaintiff was a niece of the deceased and sought to show that she was an eligible person to make a claim under the Act.
To satisfy the requirement of an eligible person, the plaintiff had to show that there was some dependency on the deceased, and that she was a member of the deceased’s household.
Although the plaintiff had resided in the same household as the deceased for four years during the 1980s and was partly dependent on the deceased in this time, the relationship in the last 12 years of the deceased’s life was not close.
The plaintiff’s claim was dismissed, as the Court thought that the plaintiff would not be a person who would be a natural object of testamentary recognition and she had also not contributed towards the deceased’s estate.
The combined costs were over $155,000, and the estate was worth just under $2 million. The plaintiff had few assets and was young.
The Court made an order that the plaintiff pay her own costs and that the defendant’s costs be paid by the estate.
Maxwell v Public Trustee
New South Wales Supreme Court
The deceased was survived by his four children from his first marriage and also by his second wife.
One of the children commenced a claim under the Inheritance (Family Provision) Act within time and the other three then wished to make an application for leave to bring their respective claims out of time.
Two of the children said that they had been unaware of the time period and had not sought legal advice early in the piece because of financial difficulties. They were allowed to bring their claims.
The other child saw a solicitor a few days after his father’s death but gave no explanation as to why his claim was brought out of time. The Court did not allow him to bring the claim.
The Court also considered that the other two children had reasonable prospects of success with their claims. There is no point in extending time if there is no prospect of success.
Out of a $270,000 estate the three successful children received $45,000 each and the balance went to the second wife.
Marshall v Redford
New South Wales Supreme Court
The deceased left his entire estate to the RSPCA. The estate was worth $397,000. The deceased had made a will leaving everything to his second wife and in default to the RSPCA.
His second wife died before him and therefore everything went to the RSPCA despite the fact that the deceased had no involvement and had never given any benefit previously to the RSPCA.
Although the Court professed to follow the High Court approach in Singer v Berghouse, the Court rejected the approach that all the plaintiff had to do was prove that the plaintiff was an eligible person and that the plaintiff reasonably needs more financial assistance.
The Court said that there must be a full investigation to all the facts and circumstances of the matter to see whether the community would expect that the testator ought to have made provision or further provision for the plaintiff.
The Court awarded a legacy of $75,000.00 to one son who had had very little contact with his father (because the plaintiff stayed in Wales when the deceased migrated to Australia).
He maintained contact by mail but never travelled to Australia because he couldn’t afford to do so.
Even though the son had not seen his father for the last 30 years of his father’s life, he was still eligible for an award. He lived in very modest circumstances and was likely to retire still owing money on the home mortgage.
His sister Margaret was quite wealthy, married, 57 years of age and without dependants. She and her husband had assets in excess of what the estate was worth but only had a modest income of $28,000 per year.
Although the Court thought that her case was quite difficult, it still awarded her $40,000 mainly on the basis of a level of modest income and uncertainties over her husband’s employment.
Lawrence v Lawlor
New South Wales Supreme Court
This was a claim under the Inheritance (Family Provision) Act. Unusually, valuation evidence was called as to the value of real estate in the estate. The net estate was worth $900,000.
The claimant daughter was a 62 year old divorcee. She had one dependent child. She had suffered from cancer but was in remission.
She owned a house in need of considerable repair and owed around about $105,000.00. The claimant had a good relationship with the deceased and had done a small amount to build up her estate in her childhood.
The defendant was the claimant’s sister. Two other siblings who received gifts in the will did not challenge the will.
The defendant had lived at home her entire life and as the deceased’s condition started to deteriorate the defendant became a full time carer for him. She had been provided with accommodation free by her father.
The Court awarded the claimant a legacy of $130,000.00, as the Court thought that the minimum that the claimant needed was between $110,000.00 and $130,000.00.
That left the claimant in a position where she owned her own home freehold and lived on the pension. That was in addition to the claimant’s benefit under the will of roughly $40,000.
Gehradte v Muslovich
Western Australia Supreme Court
This was an application to extend time to bring an action under the Inheritance (Family & Dependents Provisions) Act 1972. The claimant’s father had left a life interest to the claimant’s mother in 1973.
The remainderman was the claimant’s brother. In June 1999 the claimant’s mother died and the property passed to the claimant’s brother. Negotiations took place between the claimant and the defendant which broke down in December 2000.
It was not until 3 months later that the application under the Act was brought.
After reviewing the established principles on application for an extension of time, the Court refused the application.
The Court considered that the claimant did not have an arguable case and that the inordinate delay had caused significant prejudice to the defendant. For example, important witnesses such as the solicitor who drew the deceased’s will, and the mother, had died.
Barker v McGee
New South Wales Supreme Court
This was an application to extend time under the Inheritance (Family Provision) Act. After reviewing the accepted principles on extensions of time, the Court reluctantly gave an extension of time.
The claimant had in fact sought advice during the time period to bring a claim, but had never received advice from her solicitor as to the likely prospects of success of her claim.
The claimant said that she was waiting for her solicitor to contact her and she had in fact moved premises at the time. The Court accepted this as a marginally adequate explanation and allowed her an extension of time as the other criteria were met.
The claimants were the deceased’s first wife and the two children of that marriage. This was an interesting case because the deceased’s second wife had received over $400,000.00 from a superannuation benefit which did not pass through the estate.
She also received some jointly owned property with a net value of approximately $60,000.00 and she also managed to get his long service leave payment paid direct to her. In fact the estate was insolvent.
In New South Wales, where the concept of a notional estate exists, the Court designated the former matrimonial home as the notional estate and then awarded the first wife a legacy of $25,000.00, one son $30,000.00 and the other son $10,000.00.
Chapman v Chapman
Queensland Court of Appeal
This was an application under the Inheritance (Family Provision) Act. The claimant was a daughter of the deceased, but was left only $3,000.00 under the deceased’s will, while the other daughter of the deceased was left with the balance of an estate of approximately $220,000.00.
The claimant was an adopted daughter and ran away from home when she was 15 before returning when she was 17. She was married and divorced three times and had three children.
The claimant was unemployed and on a pension. She had few assets. The other daughter lived with her mother and devoted a great deal of time and money in caring for her mother.
The Court exercised its discretion to give one quarter of the estate for the claimant and three quarters for the other daughter.
Osborn v Estate of Osborn
Supreme Court of Victoria
This case involved a question of mutual wills.
The plaintiff’s mother and father had signed wills in 1985 which were identical in that each will gave the estate to the survivor and then to the children of the marriage in equal shares.
The plaintiff’s mother died shortly after signing the will.
The plaintiff argued that because the wills were signed as mutual wills, the plaintiff’s father could not change his will to anything other than leaving his estate equally between his children. The father did just that and then died.
The solicitor who prepared the so called mutual wills was called to give evidence. Although he no longer had any files he said that his recollection was that if the parties had intended to make mutual wills, then he would have prepared them in an entirely different way.
The Court reiterated the following principles relating to mutual wills:-
• A person alleging an agreement to make mutual wills assumes a heavy burden of proof because such agreements are easy to allege after the parties to it have died and the Court should be very careful in accepting the evidence of interested parties upon such a question.
• The mere fact that husbands and wives make corresponding wills is not sufficient to establish a binding agreement not to revoke such wills.
• On the evidence, the Court found that there was no evidence of either parent wanting their wills to be regarded as mutual wills.
Common v Public Trustee
Supreme Court of New South Wales
This was a claim for further provision under the NSW equivalent of the Inheritance (Family Provision) Act. It was a claim by a brother against the estate of his late brother.
The estate was split equally between the claimant and the claimant’s sister. The deceased and the claimant’s sister had owned a property as joint tenant and she had received that by way of survivorship. The benefit to her of that was approximately $250,000.
The Judge considered that the evidence which was that the deceased appeared to have attempted to deal even-handedly with the claimant and the deceased’s sister and this was a factor in allowing the claim to succeed.
Porritt v Maguire
Supreme Court of New South Wales
This was a claim by an adult son under the Inheritance (Family Provision) Act. The estate was modest approximating $272,000.
The adult son was 58 years old and had little contact with the deceased, as the deceased and the claimant’s mother had divorced when he was 1 1/2 years old. The claimant had made contact with the deceased briefly on two occasions during the 1960s.
The claimant was single with no dependants and owned a small boat and caravan valued at approximately $50,000.
The estate was left to the deceased’s defacto wife.
The Court awarded the claimant a legacy of $30,000. As all of the estate had been distributed, the Court had to go to the notional estate to obtain the $30,000.
In South Australia, the claim would have got nowhere as the estate had been finally distributed.
Handley v Cipollone
Supreme Court of New South Wales
This was a case under the Family Provision Act in New South Wales. The deceased died with a modest estate of $115,000. He bypassed his former wife and three children of his marriage, and left the estate in equal shares to two favoured grandchildren.
The claim was made by his adult daughter.
The deceased and the adult daughter had had a reasonable relationship during life but this deteriorated towards the end of the deceased’s life and the deceased and the applicant had no contact for about the last 9 years of the deceased’s life. The Court found that the deceased was at fault for the breakdown of this relationship.
The applicant’s financial position changed dramatically after the deceased had made the last will. This was due to some Court proceedings being brought against her company which increased her level of debt from about $100,000 to $300,000.
The Court said that although the applicant was 51 years old, and in good health and had adult children living at home, her financial position was such that there was a need for further provision from the estate. Following the principles in Singer v Berghouse, the Court considered that as the grandchildren were aged 16 and 14 years respectively and were able to be looked after by their father, it thought that the grandchildren should receive a legacy of $5,000 each and the balance of the estate should go to the plaintiff.
Delisio v Santoro
Supreme Court of South Australia
This was an application under the Inheritance (Family Provision) Act. The deceased left an estate of approximately $207,000.00. He was survived by his wife and 9 children, but in his will he left everything to just one daughter.
Three of the daughters made an application. One of the sons also joined in, although he was 6 months out of time.
The Court allowed him to make the application even though his explanation for the delay was marginal. Fortunately, however, none of the estate had been distributed and there was no evidence of prejudice if the extension was granted.
The Court found that all of the applicants were left without adequate provision.
The basis for this was that they had cared for the deceased at some stage during the later part of his life, some still had the care of children and most of them were in a relatively modest financial position.
Slade v Slade
Supreme Court of New South Wales
The deceased died in January 2000 and left her entire estate of $568,000.00 to her children: one-third to her adopted adult son, and the other two thirds to her adopted adult daughter.
After the will was made, the deceased wrote a letter to her solicitors instructing them to change the will so that each received half but in fact the letter was never sent. The Court held that this was not a will.
The son was 37 years old, single and with no dependants but was in poor health being until recently a drug and alcohol addict.
The daughter was 33, married and with three dependant children, two of whom had medical problems. Her financial position was modest whereas the son’s financial position was quite stable despite his drug addiction.
The Court thought that the son’s needs were more immediate because of the addiction and adjusted the share so that he received 3/8ths of the estate and the daughter received 5/8th’s of the estate.
Blair v Blair
Supreme Court of Victoria
This was a claim for further provision from a deceased estate.
The deceased had an estate of $774,000.00, and left $150,000.00 to one son and the balance to the other son.
Both of the sons had a relatively normal relationship with their father and regular contact.
However, the son that received the greater benefit had numerous business dealings with his father and had worked with his father to increase the wealth of his father.
The plaintiff was a veterinary surgeon and was in good health. The defendant had a degree in agricultural science and was managing director of a list of agricultural companies. He was in a sound financial position and in good health.
The Court dismissed any presumption that an adult son was able to maintain and support himself and therefore required some special need before the claim could succeed.
This was as a result of the recent amendment in Victoria where the family provision legislation removed family membership as a necessary qualification for making a claim.
An applicant must only show that he or she is a person for whom the deceased had responsibility, whether arising out of a family relationship or otherwise.
Despite the approach in Singer v Berghouse which is to do away with the concept of moral duty, this judgment seems to place considerable emphasis on those words.
Ultimately, the Court increased the gift to the claimant by $50,000.00.
Coombes v Ward
Supreme Court of Victoria
This case illustrates how different the law in Victoria operates to the way it operates in South Australia. The deceased was the natural mother of the plaintiff. However, the plaintiff had been adopted at the age of 4.
The plaintiff alleged that despite the adoption, he and the deceased had close contact during childhood years and kept in touch by phone calls in later years.
The plaintiff was not in good health being legally blind, suffering from hypertension and renal failure.
He lived in rented accommodation, had virtually no assets and was living on a pension. In South Australia, the plaintiff would not be an eligible applicant.
In Victoria, the Court had to work out whether the plaintiff was a person to whom the person had a responsibility to make provision for proper maintenance and support.
In determining whether the deceased had the requisite responsibility, the question to be asked was: “Whether in all the circumstances as a wise and just testator, did the deceased have a moral duty to make provision by her will for the proper maintenance and support of the plaintiff out of her estate?”
On the facts of the case, the Court considered that the deceased had no responsibility to the plaintiff and dismissed the application.
Gigliotti v Gigliotti
Supreme Court of Victoria
This was an application for family provision. It involved two elderly people who were widowed from their first marriages. Their marriage lasted 10 years before the deceased’s death.
The deceased left a will giving a life estate in the deceased’s home to his second wife.
The deceased and his second wife had also entered into a pre-nuptial agreement which was to the same effect as what was in the will.
The dispute arose because the second wife wanted to live with her own family in a different residence and not so close to the deceased’s own family.
The remainder beneficiaries of the deceased’s estate were the deceased’ s four sons.
The second wife wanted a fee simple interest in the house rather than a life interest.
The Court considered that a life interest in the deceased’s house was inadequate provision and altered the will so that if the second wife wished to move from the house, she would receive $150,000.00 from the proceeds of sale to purchase a house, and another $50,000.00 for, as the Court expressed it “the unforeseeable vicissitudes of life”.
With a number of second marriages in Australia and the need to divide the cake up amongst a number of family units there is likely to be a growth in these types of claims.
Bird v Bird
Supreme Court of Queensland
This was a case for family provision. The applicant was the only son of the deceased and filed his application 51/2 months out of time.
The applicant was a black sheep. During the deceased’s lifetime, the deceased had lent the applicant $200,000.00 and forgiven the loan, giving him 124 acres of land which the applicant had sold and lost the proceeds in an unsuccessful investment and so on.
The deceased said in his will that he had made more than adequate provision for his son during his lifetime and that his son was unable to manage large sums of money and was a gambler.
One of the reasons that the son gave for his delay in issuing the proceedings was that he was running a concrete pumping business that had not turned out to be as successful as he had expected, and he had to spend a lot of time on running it.
The Court considered the usual factors in deciding whether or not to grant the extension of time and found that the explanations for the delay were not persuasive. Further, the Court found that the will maker had more than generously provided for his son during his lifetime.
The Court dismissed the applicant’s claim.
Carrick v Public Trustee
Supreme Court of New South Wales
This was an inheritance family provision case where the net estate amounted to $350,000.00. The estate was left to one of three daughters. She had net assets of approximately $24,000.00, a weekly income of $510.00 and expenditure of $342.00 per week.
The beneficiary’s two sisters commenced proceedings for a share of the estate. One of the sisters was called Julie. Her taxable income was $73,391.00, and had net assets of around about $51,000.00.
The other sister was called Jennifer who had a taxable income of $78,000.00 and net assets of around $340,000.00.
The Court awarded Julie $70,000.00 from the estate so that she could discharge the mortgage over her house. It rejected Jennifer’s claim, finding that she had no need for further provision.
Golan v Frey
Supreme Court of New South Wales
This was an inheritance family provision case with an unusual twist.
Five years prior to his death, the deceased transferred all of his assets so that he and his second wife owned them as joint tenants. The plaintiff was the daughter of the deceased’s first marriage.
In fact these assets at the date of death totalled over $1 million.
The deceased’s widow was wealthy in her own right and had over $1 million in assets as at the date of death.
Prior to his death, the deceased had asked his wife to give from the joint assets, $100,000.00 to his former wife and $35,000.00 to the plaintiff and to the plaintiff’s sister. The second wife actually did this.
However, this was not enough to stop the plaintiff making a claim.
In New South Wales, you may recall that there is a concept of notional estate where the Court can drag back into the estate available for distribution under the Inheritance Act, assets which are at law, not part of the estate.
In this case, the Court determined that some assets became part of the notional estate and ordered the payment of $65,000.00 to the plaintiff.
Hinde v Bush
Supreme Court of New South Wales
This was an Inheritance (Family Provision) case. The plaintiff was a 72 year old male who had lived in a defacto relationship with the deceased for 10 years until her death in 1999.
His assets only amounted to $50,000.00, and he received a pension of approximately $440.00 per fortnight. The Court upheld the plaintiff’s claim and awarded $200,000.00 out of the assets of the estate and managed to find another $50,000.00 from an asset which was designated as notional estate.
The beneficiaries of the will were the deceased’s three children, yet the Court awarded the defacto spouse of some 10 years a substantial portion of the estate.
Kazacos v Kazacos
Supreme Court of New South Wales
The deceased died with assets of well over $1 million.
The plaintiff was the deceased’s son from his first marriage. The deceased had left the marriage when the plaintiff was only three years old and apart from the first six months after the marriage breakdown, never saw his son again.
The deceased’s father had given the son $150,000.00 which was the extent of the son’s assets at the time of making the claim.
The son was 21 at the time of the making of the claim. He asked for sufficient money to buy himself a new Holden Commodore valued at approximately $50,000.00.
The Judge awarded him an extra $180,000.00 on top of the $45,000.00 that he had already received under the estate.
The Right Advice on Estate Administration in Adelaide
Estate Administration can be a very complicated task. Then again, you can easily ask us for assistance. For expert guidance regarding your Estate Administration in Adelaide metro area and surrounding areas, contact Genders & Partners.
Rod Genders is a senior Australian lawyer specialising in trusts, Wills and estate planning, accident compensation, and probate and estate administration in Adelaide and all over South Australia.
His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is also a prolific author and speaker.
Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Estate Administration, Asset Protection and Retirement Planning may be found at www.genders.com.au.
FREE REPORT “7 Things You Must Know About Probate and Estate Administration”
In this report you will Learn:
What is Probate- Duties of Executors
- Who Should Serve as Executor
- Executor’s Commissions
- Legal Fees and Expenses
- Sale of Real Estate and Other Property
- Challenges to the Will or Estate
