Another successful claim by an adult child for further provision from their parent's estate
Aug 12, 2017On 10 August 2017, the Supreme Court yet again made an order in favour of an adult child who claimed for a larger share of their deceased parent's estate, under the family provision laws: Towson v Francis [2017] NSWSC 1034
The family
The person making the claim was one of 3 adult children whose mother had passed away in 2015. Since 2006, the claimant and her mother were estranged, with limited contact, seemingly because of the claimant's concerns about her mother's alcohol consumption.
The Will
In her Will, the deceased made the following gifts:
- jewellery to her daughter, Julianne;
- a writing desk to her son, Peter;
- a cash gift of $20,000 to the claimant;
- her Wagga Wagga property to be shared between Julianne and her 2 children (the deceased's grand-children); and
- the rest of her estate to be shared between Julianne and her 2 children.
Even though the deceased's son, Peter, only received a writing desk under the Will, he did not make a claim for further provision.
The Claim
The claimant sought additional provision from her mother's estate pursuant to the family provision laws in the Succession Act 2006 (NSW).
The Law
A family provision order is an order made by the Court in relation to the estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an "eligible person". Under section 57(1)(c), a child is an "eligible person" to make a claim.
Considerations
The Court needs to take into account a number of different considerations, such as the claimant's financial needs as well as the size of the actual estate.
The Court also acknowledges that:
- the relationship between parent and child changes when the child attains adulthood - however a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed;
- ordinarily, the community expects parents to raise and educate their children etc - although does not expect a parent, in ordinary circumstances, to provide an unencumbered house - unless of course where assets permit and the relationship between the parties is such as to justify such a provision being made
- if an adult child becomes dependent on the parent, then "the community usually expects the parent to make provision to fulfil that ongoing dependency after death".
- the adult child's lack of financial resources to meet their particular demands (particularly those of a medical nature) is a relevant consideration.
The parties' financial positions
Both the claimant and her husband have limited assets and income, whilst her sister Julianne is in the best financial position of all the parties.
Orders
The difficulty with this estate is that it was not particularly large, once the parties' legal costs were factored into it. And another difficulty was whether any additional provision made in favour of the claimant would be made from the other beneficiaries equally, or only against the most financially secure beneficiary.
As noted by the Court:
"Any provision made by the Court in favour of an applicant must, in this class of case, be made at the expense of the beneficiaries who have had to defend the claim, and who are the chosen objects of the deceased's bounty."
The Court concluded:
"This is a case of an applicant adult child who has lived quite independently of her parent, the deceased, for many years, but who is nonetheless, at the date of the hearing, in circumstances where she has virtually no working capacity, where she has quite severe health problems, and where her husband is 70 years of age and retired."
Taking all factors into account, the Court decided that adequate provision for the proper maintenance or advancement in life of the claimant had not been made, and ordered that a lump sum of $60,000 should be made from Julianne's share of the estate, resulting in a final distribution of:
- $60,000 to the claimant;
- $85,000 to her sister, Julianne;
- $145,000 to each of Julianne's children.
Contact the Shire Legal team if you have any questions.
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