In recent times, adult children have not faired well in Family Provision Applications.
When considering a claim, the Court considers "the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the deceased and other persons who have a claim upon his or her bounty".
The recent Supreme Court of Queensland decision of Underwood v Underwood [2008] QSC 159, considered a family provision application by a de-facto spouse and three of the four adult children of the deceased.
The deceased had an interest in a business that had been held by his family for many years. None of the deceased's children had shown any interest in the business, however his nephews had worked in the business since they were apprentices, were his business partners, and had been effectively conducting the business since 1988. The deceased's interest in the business and the business real property was left entirely to the deceased's nephews in the proportions that would have the effect of equal ownership.
The remaining assets of the deceased (which were less than the business assets) were shared between members of the deceased's immediate family and his de facto spouse. The fact that there was an inequality between the nephews' share and that of the deceased's natural children was not considered enough for adjustment of the beneficiaries' entitlements. The Court turned to the individual claims and the circumstances relevant to each of them.
The Court considered a number of aspects relevant to each of the applicants including the financial and personal circumstances relevant to each.
The Court considered that the deceased's sons were not dependent on the deceased, and had not contributed in any significant way to the estate, and had capacity to provide well for themselves and their families. Therefore, the Court held that adequate provision for each was made in the Will.
With regard to the applicant's daughter, the Court noted that, due to her lack of education, physical disabilities, past offences and a prior drug addiction, her capacity and opportunity for work were greatly diminished. The Court decided that, given the circumstances and that her need was greater than her two brothers, she should receive the same proportion of the estate as her brothers (which would result in her receiving a share of the business or an equivalent monetary value) and an additional $25,000 to cover the expense of her rehabilitation and retraining.
The de facto spouse was awarded an additional $30,000 given her contribution to the deceased's care prior to his death and her deteriorating health. The Court also took into consideration that the de facto spouse also received a spousal dependency benefit from Workers' Compensation which was not part of the estate.
This case highlights the importance of considering each case on its merit. Another case which highlights this is the recent decision of Daley v Barton & Anor; Barton v Daley [2008] QSC 228 (24 September 2008). In that case an adult child who was in a secure job, owned property worth at least $800,000 with a mortgage of $290,000, and had outstanding loans to his mother of $225,000, was awarded the amount of $560,000 to be paid from the estate of his father who had left his whole estate to his wife of less than two years.
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.
