A feature of recent court disputes has been claims by adult children – estranged from a deceased parent who provided them a much smaller benefit than the bequests to their siblings – for a greater share of the parent’s estate.
The first concerns a 65-yr-old daughter of ordinary means who sought further provision – ie a larger share – from her mother’s estate which consisted of a Fairfield, NSW property valued at $780k and other assets of just under $130k.
Coral Scott’s will – made two months before her death – left the property to daughter Charlene and legacies of $40k to her son and her other daughter Coralynne.
Justice Guy Parker held that the provision made in the will was inadequate for Coralynne’s proper advancement having regard to her needs.
He ordered that she be provided for to the extent of a further $180k payable out of the Fairfield property.
Detailed consideration was given to the financial circumstances of both daughters and the reasons given by the willmaker as to the disparity in benefits which was influenced by strained relations with Coralynne and favouritism towards Charlene.
Interestingly, no final orders were made as Justice Parker – noting serious concerns as to the legal capacity of the will-maker at the time it was made – wished to afford both Coralynne and her brother the opportunity to consider a challenge the validity of the will, which if successful would result in the three children receiving equal distributions as per the provisions of a prior will.
In the next example, the deceased’s two eldest sons (both in their 60’s) sought further provision from their father’s estate.
David McLeod whose wife had predeceased him divided his estate into 5 equal shares (equivalent to $136k each) and left 4 of those shares to 4 of his 5 children with the remaining share split between his second eldest son Peter, Peter’s former wife and their child (aprox $45k to each ).
Justice Geoffrey Lindsay noted both Peter and elder brother David were destitute and “in, or on the cusp of, a state of homelessness”.
He considered in detail the breakdown of the relationship between Peter and his father and how that coloured the father’s intentions for him.
He ruled the sums provided for them in the will be inadequate and ordered that David receive an additional $25k and Peter $60k and that the estate pay their legal costs on an ordinary basis.
The third example concerns the $1.5 mil estate of Johanna Kempermanto who died aged 88 yrs in December 2019 leaving three adult children.
“The case provides a further example of an unfortunate legal battle, waged between the living, over the property of the dead”, Justice Phillip Hallen said at the outset of his 14-page judgment.
“Regrettably it is also one in which a major issue revolves around the character and conduct of the applicant, her relationship with the deceased, and the competing allegations concerning the causes of the state of that relationship”.
Estranged daughter Antonia – who had been left just $50,000 and a violin by her mother – sought a further provision.
Antonia had serious medical problems, survived on a disability support pension and had savings of $55k.
The deceased’s two other daughters – who received the majority of the estate in equal shares – were in much better financial circumstances but not without needs.
All three children were in their 60’s and the deceased’s husband had died before her.
His Honour noted the estate was large enough for a further provision to be made and still leave a significant benefit for the other two daughters.
He carefully observed Johanna’s reasons for the disparate testamentary benefits and the nature of Antonia’s estrangement from her mother.
Such estrangement was not – in this case – sufficient to defeat Antonia’s “moral claim” or end “the moral duty of the testator towards the plaintiff… as ultimately the relationship of parent and child carries with it a moral obligation”.
Rather, the diminished relationship should be taken into account only “to reduce the amplitude of any provision to be made” eg, if it was “dysfunctional, intermittent or reduced in some other way”.
Justice Hallen found that adequate provision had not been made and ordered that a further $170,000 be paid to Antonia and that the estate also pay $110,000 of her legal costs of $174,000.