The Facts

Father leaves most of his estate to charities

A NSW man died in September 2018, leaving an estate of about $2.5 million.

His will left $50,000 to his only son, together with smaller gifts to two other people, with the rest of the estate passing equally to two charities. The amount to be distributed to the charities was about $1.8 million (ie $900,000 each).

Father leaves his family behind and moves to Australia

The relationship between the father and son was a distant paternal one. It was accepted to be a poor relationship, marked by distance and aloofness on the part of the father, who was absent for significant periods of the son's life. The family lived in Eastern Europe during the son's early childhood and the father was a medical specialist who would work away from home for three months at a time and return for a week to the family home.

During these times away, the father had an affair with another medical specialist and formed a relationship with her. The father and his new partner moved to Australia to live, leaving the young son with his mother in Eastern Europe.

Adult son emigrates to Australia

After reaching adulthood, the son spent four years in prison in Eastern Europe as a result of getting into trouble with the communist government in his country. Following his release from prison, the son moved to Australia with some help from his father, who acted as the "guarantor" for him. He lived with his father for 14 months after he arrived while he learnt to speak English.

The relationship between father and son was not a close or emotional one, despite the son wanting it to be. The son admitted that between 1994 and 2018, he only saw his father on about five or six occasions, although he spoke to him about fortnightly, and then weekly following the death of his father's second partner in 2017. Most of the conversations were unpleasant or argumentative.

Son's poor financial position and lack of employment

The son had previously been a mechanical fitter and was 61 years old at the time he began the proceedings against his father's estate. He lived in rental accommodation, with few assets, little cash in the bank and a superannuation balance of $54,000.

He had little prospect of returning to the workforce due to his age and poor health. He was receiving Newstart payments fortnightly due to being unemployed.

Widely differing assessments of son's future needs

The son submitted that he should receive provision of $550,000 – $650,000 so he could purchase accommodation, plus a further lump sum of $500,000 to cover future contingencies, including health care and the cost of living. The son sought a total provision of approximately $1.1 million, which would have left about $300,000 to each of the charities.

It was accepted by the estate that improper provision was made for the son. However, the estate argued that the appropriate amount to be given to him would be approximately $450,000 in total, being $400,000 in addition to the $50,000 that he had already received under the will.

It was up to the court to decide whether the son should receive more than $450,000 from his father's estate.

case a - The case for the estate

case b - The case for the son
  • It is true that the deceased did not provide adequately for his son, but the extent of provision should be limited to no more than $450,000 in total.
  • The son is exaggerating his needs in his claim for a large sum to buy a house. He currently lives in a two-bedroom apartment and a similar dwelling could be bought for a much more modest sum.
  • The deceased was very clear in his desire to leave most of his money to the charities which were dear to him. Testamentary freedom (ie the freedom to dispose of your money and assets however you want after your death) should be upheld in large part.
  • The $1.1 million the son is asking for is 22 times the value of the provision that his father had determined to leave him in his will.
  • To agree to such a substantial alteration would interfere unjustifiably with the father's testamentary freedom.
  • Having regard to all relevant factors, adequate provision for the son is no more than $450,000 in total, which would be enough to buy him a small home and have a financial buffer for the future.
  • My father's estate is a large one, I am the only son and a parent has a moral obligation to provide for a child.
  • There are no competing beneficiaries to whom my father had a moral obligation (ie there is no spouse or other children).
  • Charities are not beneficiaries that would ordinarily be expected to receive substantial provision from a deceased person in circumstances where there is a surviving child or children.
  • Any "estrangement" between me and my father was due to his actions over the years, rather than mine. I was only a small child when he walked out of the relationship with my mother and moved to another country.
  • I cannot work in the future due to my age and ill health, but I need a home to live in and a capital sum of money to live on.
  • If I receive greater provision from my father's estate, taxpayers may not need to provide for me through Newstart payments.
  • I accept that some of the estate should go to the charities specified by my father, but the court should find that $450,000 is not adequate provision for my future needs.

So, which case won?

Cast your judgment below to find out

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.