Claim for Family Provision

What a court considers in family provision claims

While an adult child may make a claim against a parent’s estate if dissatisfied with the share left to them, they may not necessarily succeed.

When such a claim is made, the Court will consider many factors to determine whether adequate provision for the proper maintenance, support, education or advancement in life, has been made for the adult child under the Will. Importantly, the Court will also consider legitimate claims on the estate by other competing beneficiaries.

 

A family provision claim – Taylor v Taylor

In Taylor v Taylor [2016] WASC 71, the deceased father left a Will in which his estate of $560,272.00 was to be divided between his five adult children. He left $430,000.00 to one of his sons, Allan, and the remainder of the estate was to be divided equally between the four remaining children, one of whom was Lindsay Taylor (the plaintiff). Lindsay brought a family provision application claiming his father did not adequately provide for him because of his circumstances.

Lindsay was 58 years old and employed full time. He and his wife owned assets totalling $419,274.00 at the date of the trial. He had four children and significant health issues which required ongoing medical treatment.

Allan was 45 years old and in good health. He had never married and had no children. In the four years before father’s death, Allan had acted as a carer for the deceased who required a very high level of care. He relied on Allan for basic tasks such as showering, dressing, toileting, wound care, cooking, cleaning, arranging/attending medical appointments, and taking him on outings and appointments. Because of Allan’s devoted care, the deceased could continue living in his own home instead of moving to an aged care facility.

The Court considered factors including Lindsay’s financial position, his ongoing medical needs and his obligation to support others. The Court also considered the existence of any moral claim to the estate. The Court weighed Lindsay’s claim against Allan’s claim, determining that Allan had forgone his own independence to care for his father.

The Court dismissed Lindsay’s application and stated the deceased could distribute his estate in unequal portions between his children if he chose to do so. It was clear the deceased’s decision to leave the majority of his estate to Allan was to express his gratitude for the years of care and selfless conduct by Allan.

 

 

Courts try to honour the wishes of the deceased

The Court’s first consideration in any claim is to try to honour the wishes of the deceased as expressed in the Will and to weigh this against the obligations of a ‘wise and just’ testator in possession of the relevant facts about possible beneficiaries. The decision is not about ‘fairness’ or ‘equal treatment’ for all beneficiaries.

 

 

Do you need help with a challenge to a will?

If you have been left out of a Will or if you are dealing with a challenge to an estate contact us for professional legal advice tailored to your circumstances. Please call us on 07 5597 3366 or complete the ‘Contact Us’  form below.

 

Please note

This article was written by Margaret Miller, partner at Bell Legal Group. It is general in nature, is not legal advice and must not be relied on as such.