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Not all Family Provision Claims are Successful

Posted by Reg Biddulph | Feb 24, 2017 | 0 Comments

(Last Updated On: February 24, 2017)

The very recent decision in MILLS -v- PILLER [2017] WASC 45 confirms a recent run of unsuccessful claims in the Supreme Court of Western Australia. The facts were that the Deceased died age 83.  She was dviorced and left five adult children who were all in their 50's. The Applicant was the Deceased's daughter aged 55.  She was unemployed. She had no assets to speak of.  She was not married or in a de facto relationship.  However, she and her adult daughter had lived with the Deceased since 2012 (approximately 3 years before the Deceased died. The Applicant received Centrelink Benefits including the ‘carer's pension' for looking after the Deceased. The Estate had a net value of about $2.2 million (mainly comprising two properties, one of which was the residence in which the Applicant resided with the Deceased).  This meant that each of the five children would get about $400,000.00 from their mother's estate.

Position of Other Beneficiaries.

One sister was aged 60, was married and earnt $65,000 pa.  Her husband was a concrete labourer.  They had a house worth $850,000 with a mortgage of about $492,000. Another sister was 58, separated from her husband and had a salary of $88,000 pa.  She had some super ($95k), a car and savings of about $30k.  She had agreed with her husband that she would keep the former matrimonial home (worth about $900k) and pay him $490k. A brother was aged 59, worked as a ‘brickies labourer' three days a week earning $228 per day.  He had super worth about $80k and a $3,000.00 car.  He had debts of $53,000.00.  He also expected to inherit 80% of a house owned by his father's estate (upon the death of the life tenant). The youngest brother was aged 52.  His assets were said to be worth about $262,000 and his liabilities were $16,500.  He earnt about $60,000.00 a year.

Financially, the Applicant was in a worse position than her siblings.  She wanted $650,000 to be paid to her from the estate (including the $400,000 she was entitled to under the will). It was put on her behalf that this would be used to fund the purchase of a house for her to live in.

The Decision

. The Court found that the provision made in the will did not fail to make ‘adequate and proper provision' for the Applicant. The court said there were a number of factors that weighed in her favour (the fact she was not married, had not worked for some time, had various ailments, did not have an extravagant lifestyle and had limited reserves).  However, weighing these factors up against the competing interests of her siblings (who also suffered various ailments and had ‘liabilities and modest or little superannuation') there could be no justification for depriving the siblings of their inheritance.

Comment.

Most members of the community would be of the view that a will that divides an estate equally between a person's children is a ‘fair' will and a proper one in all the circumstances.  Parents tend to give each of their children an equal start in life.  Some children do better than others.  The ones that do less well sometimes have an expectation that the parents will ‘make the appropriate adjustment' in their will to ‘level things up'. This case perhaps illustrates the proposition that a court will not lightly interfere with such a will.  There would have to compelling reasons why such a will should be departed from (for example, if the Applicant had severe health problems and/or had devoted substantial time and effort in looking after the Deceased and the other beneficiaries were very well off).  None of those factors were present in this case.

If you are considering challenging a will (or defending one), please contact us.

About the Author

Reg Biddulph

Graduated in law from the University of Western Australia in 1987. He has been a partner at Biddulph & Turley since 1991. He is a member of the Society of Trusts and Estate practitioners and is professionally experienced in all areas of deceased estates. In September 2016 Reg was recognised ...

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