Succession Law: Tiburzi v Butler [2017] SASCFC 89 (28 July 2017)

What seems grossly unjust at first glance, is often more complicated than we think.

A tale often told, a father passes away, leaving to each of his children (a son and a daughter) a sum of money ($50,000.00) amongst other gifts. In this case other beneficiaries were included in the testamentary wishes of the will. This included his sister, two close friends and the children of one of the close friends. The residue of his estate was also left to his close female (yet not romantically involved) friend rather than to his children.

The difference in this story, however, was that the residue of the estate came to the sum of $1.4 million.

So how did someone who is not the next of kin of the deceased end up with the “lotto”? Alas, this fortunate friend also happened to be the executor of the estate. Coincidence? With this tone, proceedings were commenced by the deceased’s daughter under the Inheritance (Family Provision) Act 1972 (SA) s 7, seeking an order that further provision be made for her out of her father’s estate.

However what unraveled was a history of estrangement for 8 years between the daughter and the deceased, a difficult relationship throughout the time when they did play a substantial role in one another’s lives, the vying testamentary wishes of a deceased man and moreover the competing moral claim of a friend who had showed the same love and support as a loving child would.

The daughter was highly educated, had a rich and fulfilling life, with stints of overseas residency and the luxury of being a property owner and a Director with shares in her own Company. The estrangement was instigated by the daughter on the premise that she was through with the deceased’s belittling her mother. However at the time of the deceased death, the prospects of the daughters’ company had taken a turn and she was dipping into her superannuation to supplement her living requirements and owned no real property. Her health was also declining and she was having to take a more sedentary role in the business. At this time she had reconnected with the deceased and had been seeing him on a weekly basis.

In the first instance, the daughter received an order that a further $725,000.00 be paid to her from the residuary of the estate for provision of proper maintenance, education and advancement (which was just over half of the estimated residual amount).

However, this order did not satisfy the daughter who felt that her financial circumstances and the period of estrangement between herself and the deceased was not adequately taken into consideration in the original judgment. The daughter appealed the first decision of the Court.

The appeal was subsequently dismissed, reinstating the award for $725,000.00 as it was held to be within a reasonable range.

The strained relationship the daughter previously had with the deceased and the rekindling of the relationship only after he was diagnosed with cancer was given due weight but not considered to be a course or a reason to change the original judgment when scrutinised in the Full Court.

The take away messages are:

  • always be nice to your parents; and
  • real friends are as good as family.

If it’s too late for this we can show you how to navigate the way forward – where there could be similar issues of testamentary freedom, adult children claims and estrangement, which continue to be contentious issues in relation to the current interpretation of law.

For more information, please contact:
Mark Minarelli

Mark Minarelli
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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