Challenging a Parent’s Will
Posted on August 02, 2014
On what basis can the Court vary the terms of your parent’s will? This recent South Australian case illustrates when the Court can exercise this right.
The Dispute
The deceased died on 28 September 2013 and left an estate worth approximately $372,000. Aside from some gifts of jewellery, which she left to her daughter, the deceased left her estate to her sister. Her daughter made a claim seeking further provision from her mother’s estate. The sister rejected this claim so the matter appeared before a Judge in the Supreme Court. In such a matter it is the role of the Court to decide whether the daughter had been left without adequate provision and whether the deceased had a moral duty to make provision for her daughter. If the answer to that question was yes, the Court then had to determine what provision needed to be made for her daughter.
Moral Duty
The Court considered the daughter’s relationship with her mother. The deceased, together with her husband, adopted the daughter in 1965 when she was 3 days old.
Approximately 8 years later the deceased separated from her husband who moved to Queensland. The daughter spent half the year in Queensland with her father and the other half in South Australia with her mother. After completing high school the daughter moved to Queensland and within a few years became pregnant with her first son. The deceased went to Queensland to be with her daughter for the first 4 weeks after the birth of her grandson before returning home. The daughter would occasionally come to South Australia to visit the deceased however her home was in Queensland. Although they lived far from one another there was no suggestion that their relationship ceased.
In 2007, the daughter came to Adelaide to celebrate the deceased’s 72nd birthday. However, the deceased’s health had deteriorated and she did not recognise her daughter. The deceased died five years later.
Adequate Provision?
To determine whether the daughter had been adequately provided for, the Court considered the daughter’s financial position. The daughter was a student who received $265.90 per fortnight carer’s allowance, to care for her sick son. She owned a house in Queensland worth $450,000 which had a mortgage of $60,000. Her husband had an income of $67,000 and they had combined superannuation of $88,000.
The sister was 63 years old and worked as a part-time telephonist. Her income was approximately $28,000 and she had $40,000 in superannuation. She owned a property in Belair worth $450,000 which had a mortgage of $90,000.
The Judgment
The Court found that the deceased did have a moral duty to provide for her daughter and that the deceased had not made adequate provision for her. The Court held that it was inappropriate, in this case, for the deceased to prefer her sister over her daughter.
One of the primary factors that influenced the Court was that the daughter had a child with special needs that she needed to support. The fact that it was the deceased’s sister who was the beneficiary of the will, rather than another child of the deceased, may also have been a factor.
The Judge did make mention that it is not the Court’s job to re-write the deceased’s Will, rather its objective is to make adequate provision for the deceased’s daughter.
The Court then considered how much of the estate should be awarded to the daughter. The Court decided on giving her 55% of the deceased’s estate plus the jewellery and 45% to the sister.
If you are a child of a will maker who you believe has not made adequate provision for you in their will, then you may be able to challenge it. However, time limits apply. So if you think you have a claim you need to act immediately.