It is common for people who control valuable structures and
entities outside of their estate to make provision for their family
through those entities when they die, as opposed to leaving gifts
to them in their Will. This is commonly done where people have
longstanding family business that their children have been involved
with and in blended families.
In the recent Queensland case of Darveniza v Darveniza &
Drakos  QSC 37, the deceased tried to use this strategy
as part of his estate planning to provide for his children but was
In Darveniza, the deceased was survived by his second
wife and seven children from three different relationships. His
estate was estimated to have a value of approximately $28 million.
He did not make any provision for a number of his children in his
Will and gave reasons for this. Several of his children made claims
against his estate, but only one (a claim by one of his sons)
proceeded all the way to trial.
The reasons given by the deceased for not making any provision
for his son were:
he had purchased income producing properties for his son during
his lifetime and he had recently transferred the management of
those properties to him;
his son was a potential beneficiary under various trusts
established by the deceased during his lifetime; and
his son had an indirect interest in other properties owned by a
company established by the deceased, in which he was a
The son was estimated to have a net worth in excess of $2.5
million at the date of trial.
Ultimately, the son was successful and received further
provision of $3 million, despite the substantial wealth he already
Some of the judge's reasons behind the decision
the fact that there was no real prospect of the son receiving
any distributions from the trusts of which he was a beneficiary;
the deceased was misconceived in understanding the nature and
estimating the value of the properties that he passed control of to
the son during his lifetime. This case emphasises the importance of
estate planning and getting the structure right.
It is a well-established principle that discretionary trust
rights will not be taken into account in family provision claims,
because discretionary beneficiaries have no rights or entitlement
to any assets of the trust. Therefore, if you intend to make
provision for a beneficiary through a trust, it is important to
ensure that control also passes to that person when you die so that
they are not reliant on others to receive distributions.
Further, it is important to ensure that a person's reasons
or explanations for their estate plan are clearly stated and
accurate. If a beneficiary is excluded from a Will on an incorrect
or misconceived basis, a Court will be more likely to overlook the
testator's wishes and make further provision for the applicant,
if there are assets available to do so.
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The session considered how, if at all, the definition of property in family law matters is changing in the 21st century.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).