Australia: Was son entitled to share of mothers estate to boost his superannuation fund? Which case won?

The Facts

Son sues mother's estate seeking "notional estate" order

A case heard in the NSW Supreme Court of Appeal concerned a 43 year old electrician who sued his late mother's estate. In her will, she gave everything to her husband (the man's stepfather) and, in the event of both dying, equally to all of their children. The joint assets were worth in the vicinity of $3 million, meaning that the deceased mother's share was approximately $1.5 million.

All assets were held in the mother and stepfather's joint names, meaning that the jointly held assets would transfer directly to the husband. The deceased mother had two sons to a previous relationship, while her husband had two daughters to a previous relationship. They were a blended family and had one child of their own relationship.

Son not able to bring claim against stepfather's estate in future if cut out of will

As current NSW laws prevent a stepchild bringing a claim against a stepparent's estate (without additional factors such as being a member of the household and being wholly or partly dependent upon the stepparent), the risk was that the stepfather might change his will in the future to cut the man out of his mother's estate.

Seeking to guarantee some of his inheritance, the man brought a claim and asked the court to make a "notional estate" order to reflect the joint assets. The court of appeal agreed that the man, as a biological child of the deceased, had standing to bring the claim.

case a - The case for the son case b - The case for the estate
  • Even though my stepfather says he has no present intention of changing his will, he has admitted that this could change in the future, for example, if he remarries.
  • Given my financial position, which includes mortgages and credit card debts, my deceased mother had a moral obligation to give me something.
  • That obligation extends to providing me with a top-up to my superannuation fund, because my current salary is unlikely to change dramatically and it would otherwise be difficult for me to build a solid superannuation nest-egg when I reach retirement age.
  • It is inconsistent with community standards for a parent to make no provision out of their estate for an adult child where the estate is large enough ($1.5 million) to make such provision.
  • The assets are jointly held and should pass to the stepfather pursuant to the law of survivorship.
  • The son will get an equal share of the joint estate when his stepfather dies. There is no evidence that the stepfather will change his will in the future.
  • The son, while eligible to bring this claim, has not proved that he has the requisite financial need to obtain the orders he seeks. He is young, employed, earns $70,000 per annum after tax, has no children and holds net assets with his spouse worth over $450,000. He will continue to add to his superannuation as he ages.
  • The fact that he currently has only modest superannuation savings of $60,000 is due to his own flawed investment strategy and his decision to persevere with a loss-making business venture.
  • It is inconsistent with community standards for a parent to make provision out of his or her estate for an adult child's superannuation savings when they have an obligation to their spouse.

So, which case won?
Cast your judgment below to find out

Vote case A – The case for the son
Vote case B – The case for the estate

Joshua Crowther
Estate planning
Stacks Law Firm

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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