In recent times, adult children have not faired well in Family
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
The recent Supreme Court of Queensland decision of Underwood
v Underwood  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
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 
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.
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On 12th November 2016, new laws will commence to protect small businesses from unfair terms in standard form contracts.
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