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The Facts
Will leaves nothing to stepdaughter
A case heard in NSW involved a dispute over whether a man had made adequate provision for his stepdaughter in his will.
The man died in November 2017.
The gross value of his estate at the date of his death was about $205,000.
He and his first wife had two children together, who resided in the United Kingdom.
The man met his second wife in Australia in 1984, and they married in 1986.
They had no children together. However, the man's second wife had one child, who became his stepdaughter.
The second wife died in 2015, leaving her entire estate to her husband, save for a silver belt which she left to her daughter.
In 2012, the man had made a will in which his stepdaughter was named as a substitute beneficiary in the event of her mother dying before him.
However, in 2016 he made a new will, in which he left nothing to his stepdaughter. Instead he left the whole of his estate to his biological children and grandchildren.
After payment of debts and funeral and testamentary expenses, each of his children was to receive 40 per cent of his estate, his granddaughter ten per cent, and his grandsons who were living at the date of his death the remaining ten per cent divided between them.
Stepdaughter sometimes resided with mother and stepfather
The stepdaughter lived with her mother and stepfather in the 1980s before going overseas in 1986 to study at university.
While she was studying, she visited her mother and stepfather at mid-semester break and over the Christmas holidays.
Between 2001 and 2011, she did not visit her mother and stepfather. Instead, the mother visited her daughter.
Then for a period of about three or four months in 2011, the stepdaughter moved back in with her mother and stepfather.
During this time there was conflict between the man and his stepdaughter, who called the police and told them her stepfather had "an undiagnosed mental health condition". The police took no further action but did record a "long seated animosity" between the man and his stepdaughter.
The last time she saw her stepfather was in September 2015, after her mother's death, when she attended his home to collect some belongings.
Stepdaughter seeks family provision order
After the man's death, the stepdaughter commenced proceedings in the NSW Supreme Court, seeking that a family provision order be made on her behalf, to be paid to her out of her stepfather's estate.
The man's sister, who was the executor under his 2016 will, defended against these proceedings.
Case A
The case for the stepdaughter
- My stepfather didn't make adequate provision for me in his will, and given my circumstances, he should have.
- At various times during my stepfather's life, I was partially dependent on him financially.
- Now, I'm 57 years old with serious health problems that limit my ability to work. I have no stable employment, no property, no means of transport, and I'm living in social housing.
- Due to my health problems and the limited job opportunities in my regional town, I've been unable to secure suitable ongoing employment. I've had two major surgical procedures with the attendant lengthy periods of rehabilitation. I then developed a pulmonary embolism, and I have suffered from pneumonia, osteoarthritis, depression, pyelonephritis and hypertension.
- I have no independent transport. I need to use a mobility scooter and I've applied unsuccessfully for assistance to meet this need under the National Disability Insurance Scheme.
- I haven't been able to have a dental consultation since 2014, and the disability household cleaning assistance that I receive will expire shortly.
- The executor has tried to argue that there was long-seated animosity between me and my stepfather and so I shouldn't be entitled to anything. This allegation is not true. In fact, I always desperately wished to have a relationship with him, but this was difficult because he could be violent and at times I was frightened of him.
- Although my stepfather's estate is relatively small, it is enough to make a real difference to my life. Even a modest provision would help me establish some financial security. My stepfather's biological children don't have the acute financial needs that I do.
- Given these circumstances, the court should exercise its discretion to grant my application for a family provision order.
Case B
The case for the stepfather's sister, as executor
- My brother and his stepdaughter were far from close. She didn't live with him full time. Though I accept that she was partly financially dependent on her stepfather and her mother for a short period, there is no evidence that he supported her to any significant extent either emotionally or educationally.
- Despite what the stepdaughter says, her relationship with my brother was acrimonious. This is evidenced by police records stating there was "continuing conflict between [him] and the stepdaughter".
- My brother's stepdaughter did not bother to conceal her dislike of him while he was alive, even writing a letter to her mother, my brother's wife, saying "I don't (sic) what the attraction is for you with these unstable and childish men you get involved with, but I do hope this is a habit you grow out of one of these days".
- Conversely, my brother had a close and loving relationship with his children. His son stated to the court: "I have always been close to my father. I never fell out with him my whole life. His advice was second to none." Similarly, his daughter's evidence was that she "was very close with my father even though my parents divorced in 1985".
- The stepdaughter says she needs financial assistance, but her financial situation is the result of her own choices. She holds two law degrees and could have applied for a practicing certificate to work as a lawyer, but has chosen not to do so.
- My brother's children and grandchildren also have financial needs. My brother's son is married with five children, aged between 19 years and four years. One of them has autism. His daughter is a single mother living in rented accommodation. His granddaughter is a university student with significant student loans.
- This tiny estate cannot meet everyone's needs, and the facts are such that priority should be given to my brother's children and grandchildren, who are the beneficiaries under his will.
- The court should deny the stepdaughter's application for a family provision order.
So, which case won?
Cast your judgment below to find out.
Vote case A – the case for the stepdaughter
Vote case B – the case for the stepfather's sister, as executor
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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