Australia: A salient reminder to Will makers to ensure that they adequately consider the special needs of beneficiaries - 5 February 2016

Last Updated: 9 February 2016
Article by Greg Cox and James Knell

The recent decision of the Queensland Court of Appeal in Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams comes as a timely reminder to Will makers that any special needs of beneficiaries, whether as a result of a disability or otherwise, should be adequately considered and provided for.

Special Counsel Greg Cox, Solicitor James Knell, and Law Clerk Kimberley Cotterill discuss the implications of this decision in the following Alert.

The facts

The 46 year old applicant, Mr John Abrahams ('John') who suffered from Down Syndrome, as well as multiple other medical conditions which included a heart condition, bilateral cataracts and non-insulin dependent diabetes, was omitted from his father's Will made in 2010 (the Will). His father ('Robert') died in 2014. Before he died, Robert made an informal Will leaving one quarter of his estate to John but, as this Will did not comply with the formal requirements of the Succession Act 1981 (the Act), it was not accepted as valid.

In the Will, Robert referred to the fact that John suffered from Down Syndrome and resided at a Multicap facility. He went on to say that John has:

"all of his financial and lifestyle needs met from his social security benefits and Multicap... has no understanding of money and lacks the capacity to go out and spend it. It is likely that any amount he might otherwise receive under my Will would just sit in a bank account without actually benefitting him".

Robert's estate was worth approximately $443,000 and John's assets were worth just over $21,000.

The Public Trustee of Queensland, acting as John's litigation guardian, commenced a Family Provision Application pursuant to the Act, claiming further and better provision from Robert's estate for John's maintenance and support. Where a Family Provision Application is commenced pursuant to the Act, the Court will firstly consider whether the original provision, if any, was inadequate for what was, in all of the circumstances, the proper level of maintenance appropriate for the applicant having regard, among other things, to the applicant's financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon his estate.

In the Will, Robert made no provision at all for John. Instead, he left his estate to most of his other children.

John's financial position was entirely dependent on his Disability Support Pension and prior to Robert's death in 2014, Robert financially cared for John. The evidence indicated that prior to his death Robert had saved $150,000 for John's future needs. However, this money was allegedly stolen by one of John's siblings.

To assist the Court of Appeal in determining John's needs, the Public Trustee of Queensland tendered a Needs Assessment Report (NAR). The NAR outlined the beneficial therapy that John would be able to access if additional provision was made from the estate. Additional funds would allow him to go to regular optometry and dental appointments, as well as allowing access to diet management, physiotherapy, occupational therapy and speech therapy. As his current health services were only accessible via Medicare, the NAR provided that the provision of funds for Private Health Insurance would aid his health treatment and allow him access to a greater range of health programs and services. In addition to therapy, the report outlined several personal items, social outings and holidays, all of which would greatly benefit John and increase his general enjoyment of life.

The parties were able to reach an out of court settlement (pursuant to which John would receive $140,000 from the estate) but required the Court to exercise its discretionary power to approve that settlement. At first instance, the District Court of Queensland refused to approve the settlement. The Public Trustee of Queensland then appealed to the Queensland Court of Appeal.

The Court of Appeal held there was no doubt that John, as a disabled son, had a need and a moral claim for further and better provision from his father's estate and that it was appropriate, in the exercise of the Court's discretion, to approve the settlement between the parties.

Take-away points

  • People who have special needs, whether as a result of a disability or otherwise, may have needs which go beyond access to standard medical care. The Court of Appeal accepted in this case that provision should be made in the circumstances for occupational therapy, personal items and lifestyle activities as they would assist in achieving a greater quality of life.
  • Adequate consideration should be given to these needs when drafting a Will.
  • There are various ways to provide for beneficiaries with special needs. These particularly include trusts set up and established either in the Will or in conjunction with the Will.

Proper estate planning and an up to date valid Will reflective of the Will makers wishes can ensure that your estate is allocated to the people that you want to benefit. If Robert's informal Will complied with the requirements of the Act, then adequate provision may have been made for John in the circumstances and very substantial costs and delay could have been avoided.

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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.

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