Forum Law Newsletter - September 2006

WILLS - AND THE DUTY TO PROVIDE FOR YOUR CHILDREN

A stepson's claim

Powell –v– Monteith is a Supreme Court of Queensland case but the principles apply to NSW. The case involved a claim by a stepson against his stepmother's estate seeking an order for further and better provision to be made for him out of the estate. By her will, the stepmother left her furniture and other chattels contained in her residence to a friend and the balance of the residue of the estate was to be given to 2 Queensland charities. In the will she expressly stated that the applicant and her other stepson, not receive any part of her estate 'because they did nothing for their father, my late husband and nothing for me and I do not consider they are deserving of anything'. The court examined evidence of the history of the relationships between the applicant and his stepmother and noted that it was not a close relationship. The Court used the 2 step approach in reaching its decision namely:

consider whether or not adequate provision was made from the estate for the proper maintenance and support of the applicant. This is a question of objective fact. If the answer is "no" , then
the second step is to determine what provision, if any, should be made from the estate. This is a discretionary matter and could result in a negative result for the applicant even if the answer to step 1. is "no".

The court considered concepts of "moral duty" but decided they such concepts were too controversial and divided to be useful. The court did find for the applicant in step 1, that no adequate provision had been made in the will after examining evidence of the applicant's financial situation. In respect Step 2, the court concluded that a payment from the part of the home left to the stepmother by the applicant's late father should be made and deducted a discount on the value of that payment because of the negative nature of the longstanding relationship between the deceased and her stepson an amount of $40,000 out of the total net value of the estate of about $235,000 was awarded.

WHEN ONE SIBLING CLAIMS MORE THAN THE OTHERS

White –v– Muldoon was a recent decision of the Victorian Supreme Court, where the applicant was one of 4 siblings, who claimed a greater than equal share of their mother's estate.

The mother's estate had a net value of approximately $283,000. After deduction of Supreme Court costs of the proceeding and other amounts approximately $190,000 to $195,000 was left. The applicant had a long history of serious health problems, was wheelchair bound and lived with his mother from the age of 48 and the next 12 years until her death. He claimed he had not been , adequately provided for.

The court can order that provision be made out of a deceased estate for the proper maintenance and support of a person for whom the deceased had a responsibility to make provision, upon being satisfied that the distribution of the estate does not make the adequate provision required.

The court followed the 2 stage approach identified by the High Court. It considered the relationship between the deceased and the plaintiff the deceased's responsibilities and obligations, the size and nature of the estate. It found that adequate provision had not been made for the applicant. The court found it difficult to determine the question of the plaintiff's future needs, but ultimately concluded that the plaintiff receive, after paying of certain debts, the sum of $100,000 which exceed the original bequest.