Family Provision Claims in South Australia

Not quite child’s play

Claiming for further provision from a deceased estate has long been thought to be the realm of the dependent child or spouse, but the Inheritance (Family Provision) Act 1972 (South Australia) allows for a whole host of other claimants to contest the provisions of a will and lay siege to a deceased’s estate.

In South Australia, any of the following are eligible apply for a family provision claim:

  • a spouse of the deceased;
  • a person who has been divorced from the deceased;
  • a domestic partner of the deceased;
  • a child of the deceased;
  • a child of the spouse/domestic partner of the deceased;
  • a grandchild of the deceased;
  • a parent of the deceased; or
  • a sibling of the deceased.

Some notable examples of successful “alternative” applicants include:

ADULT CHILDREN

Broadhead v Prescott [2015] SASC 34

Facts

The deceased, a widower at the time of his death, passed away on 11 November 2011 leaving behind six (6) adult children.

The deceased’s estate was valued at $333,423.81.

The deceased and his wife emigrated from the United Kingdom in 1973. At the time, four of their children were young adults who had employment in the UK and remained there. Two of the children were young teenagers and moved with their parents to Australia.

The deceased left the entirety of his estate to the two daughters in Australia, citing the lack of contact and relationship with the other four children as the reason for their exclusion. This was expressed in his will.

Claim

Three out of the four excluded children sought provision out of the estate.

The Court found that there was sufficient evidence that the deceased had maintained a relationship with the applicants, leading to the words of the will relating to their exclusion being disregarded.

The personal circumstances of each of the children at the time of the application were:

  • Child #1 was 63 years old and single. He continued to reside in the UK and suffered a number of physical ailments such as diabetes and Reynaud’s disease. He was unable to work, receiving a disability pension (and other benefits from the UK government) amounting to £1,000 per month. He had no significant savings or assets.
  • Child #2 was 61 years old, working part time and in a de facto relationship. She and her partner owned a house valued at £110,000 with a mortgage of £60,000. Her income was £700 per month and her partner was on an old age pension. Apart from the house she had no significant assets.
  • Child #3 was 61 years old and single. He came to Australia in 1987 to visit the deceased on a tourist visa. He overstayed the visa and remained in Australia until 2008 when he was deported. He suffered from Parkinson’s disease and was no longer able to work. He was in receipt of a disability pension from the UK government. He had no assets or savings of note.

The court declared that, due to the poor financial condition of the applicants, they had not been left with adequate provision for their proper maintenance, education or advancement in life.

Each of the applicants was awarded $47,500 from the estate.

SAME SEX DE FACTO COUPLES

Brennan v Mansfield (2013) 29 SASC 83

Facts

The deceased passed away on 10 April 2011 at the age of 90, leaving behind no spouse or children.

The deceased’s estate was valued at approximately $3,500,000.

The applicant and the deceased lived together as a couple for 26 years until the deceased’s death. They had enjoyed a luxurious life together, which was mostly funded by the deceased.

In his will, the deceased left the applicant his share in a property at Stirling (valued at approximately $900,000 to $1,000,000) and $100,000 in cash.

From the remainder of the deceased’s estate, $225,000 was distributed to various charities and $2,500,000 was left to Prince Alfred College Inc.

Claim

The applicant sought further provision from the estate on the basis that he had not been provided with adequate provision for his proper maintenance, education and advancement in life, having regard to his moral claim to a greater share of the deceased’s estate.

The applicant himself did not have insignificant assets. At the time of the application the applicant was found to have:

  • an income of approximately $82,000 per year;
  • his own car with an approximate value of $37,000;
  • substantial art and collectibles valued in excess of $100,000; and
  • savings in the bank of around $90,000.

In addition to the bequests of the Stirling property and $100,000 from the deceased’s estate, the applicant was estimated to have assets valued between $1,560,000 and $2,110,000.

Regardless, the Court found that the deceased had not adequately provided for the applicant in the distribution of his estate. The deceased had intended for the applicant to enjoy the security of the Stirling property as his own, but had failed to provide the means by which the applicant could continue doing so while maintaining the lifestyle he had grown accustomed to over the last 26 years.

The applicant received the sum of $1,000,000, with provision of an additional $900,000 from the residue of the deceased’s estate.

PARENTS

Parente v Parente (1982) 29 SASR 310

Facts

The deceased passed away on 30 June 1977 leaving behind no spouse or children.

The deceased’s estate was valued in excess of $150,000.

The two applicants were the deceased’s parents. The deceased was raised, along with several siblings, by the applicants in a poor part of the country near Naples in Italy.

Early in life the applicants identified that the deceased was quite bright and felt he had the potential to succeed in life. In spite of their impoverished circumstances, the applicants made great sacrifices to advance the education of the deceased above and beyond their other five children. In 1938 the father left his family behind and migrated to South Australia with a view to earning better wages. For three years he sent money home to Italy for the advancement of the deceased’s education.

In 1949, the father paid for the deceased’s passage out to South Australia, providing him with clothes, shelter without board, and a job.

In 1950, the deceased got into an argument with the father as the deceased wished to marry a girl from his home village in Italy, whereas the father wanted him to marry a girl from South Australia. The son was annoyed and became bitter over the disagreement.

Not long after the argument the father left South Australia and went back home to his wife and other children after a separation of twelve years from them, and with the deceased firmly established in South Australia.

The deceased left his entire estate to charity.

Claim

The applicants sought provision out of the estate.

At the time of the application the father was aged 82 and the mother 87 years old. They lived in Naples in a small flat. They were on a small pension which, after the payment of rent, provided them with $20 per week to live on.

The Court found that the deceased should have recognised his moral obligations to his aged and impoverished parents, and the great sacrifices they made for the advancement of his life. Regardless of his wishes to leave his estate to charity, he could have easily left most of his estate to charitable organisations while still providing for his parents.

The father received the sum of $20,000 and the mother received the sum of $15,000 from the deceased’s estate.

Conclusion

As can be seen from the fact scenarios above, there are many different circumstances in which a family provision claim can arise.

The cases tend to demonstrate in each case a failing on the part of the deceased to adequately consider the consequences of the will making decision. Objectively, it is not surprising that family provision claims were made in these cases. Legal costs in these matters will generally be at the expense of the estate thereby reducing the residual value of the estate.

What the cases now show is that courts are increasingly prepared to interfere with the wishes of a deceased and re allocate assets.

There are, therefore, good reasons for seeking advice on these matters in an attempt to protect your estate assets and the future harmony of your family.

For more information, please contact:
Mark Minarelli

Mark Minarelli
Director
p.   +61 8 8124 1808
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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