Children left out of their parent’s will often make a claim against the estate to reverse the will-maker’s decision to exclude them.
More often than not, they come to an agreement with the executor and beneficiaries as to what should be provided for them from the estate.
When agreement can’t be reached, the matter goes to a trial where a judge considers whether a benefit should be provided and if so, how much.
John Speechley – a widower – died at age 87 in January 2019 survived by three of his five children, but son Peter and daughter Theresa also died before John.
John’s estate consisted of his Buderim residence – a home unit of around $480,000 in value – and bank funds in the order of $50,000 after expenses. Judge Gary Long SC noted that this was a “relatively small estate”.
In his last will dated 5 July 2016, John left his estate solely to daughter Amanda, and named her as executor.
No provision was made for his son Anthony or daughter Jennifer.
Anthony made a claim for provision out of the estate and his claim was resolved by agreement that he receive $25,800.
Jennifer – a former bankrupt – also made a claim against the estate for provision, and the claim went to trial as mediation had not been successful.
Jennifer was discharged from bankruptcy in August 2021, after she filed her application with the court against the estate, but prior to the trial.
Because her estate claim had arisen during her bankruptcy, her trustee in bankruptcy notified her that she must pay $16,130.75 out of any provision she ultimately received from the estate.
Amanda at first opposed Jennifer’s claim for former provision and contended only her trustee had standing to bring it.
When the matter came before judge Gary Long SC in the Queensland District Court, that preliminary point was determined in Jennifer’s favour in that the claim was not an “enforceable right of action’, but rather a mere “opportunity to apply” for what is ultimately an exercise of discretion by the court.
It was important for Jennifer to have been discharged from her bankruptcy before any order could be made in her favour, as the court will generally not do so if its effect would be simply to benefit her creditors.
The next issue was whether any provision should be made in the context of the “small estate” where Jennifer had specifically been excluded by her father.
The judge turned his mind to Jennifer’s needs, how any payment would adversely affect Amanda and the nature of the estrangement between Jennifer and the deceased.
Jennifer was in receipt of a disability support pension, had minimal assets, limited savings, no super, and owned no real estate. Amanda however was in no better financial position.
Amanda had clearly enjoyed a close relationship with the deceased while Jennifer did not.
Jennifer pointed out that her difficult relationship with her mother had – despite attempts to improve it – impacted on that with the deceased.
His honour was unconvinced by her account because they conflicted with the written accounts of both her parents and the testimony of another relative as well as – to a lesser extent – Amanda’s assertions to the contrary.
He ruled that – although Jennifer had detailed some need for support from the estate – he could not rely on her evidence about that need due to her evidence regarding her relationship with her father being proven unreliable. The beneficiary’s own needs in such a small estate in the absence of a cogent justification meant that it would not otherwise be appropriate to make any provision for her.
On a precautionary basis – ie if his decision was to be reversed on appeal – his honour quantified what Jennifer would otherwise be entitled to receive based on her need but reduced for the estrangement at $50,000.
Jennifer’s claim was dismissed, with the judge deliberating over 9 months to carefully consider his final decision.
This case demonstrates the danger of going to trial where success or failure can turn on how well witnesses perform in the witness box under cross examination, regardless perhaps of the truth of the claims being made.