In the last blog post, we summarised who can make family provision claims against deceased estates and general factors considered by the Court. Here are some real life examples:

Estranged Children

Some parents may decide to reduce the inheritance of a child because of estrangement. Estrangement by itself is not fatal to a claim, but is a relevant consideration.

Successful claim by a child: Keep v Bourke [2012] NSWCA 64

Mrs Joyce Keep died in 2009 aged 82 years. She had 3 children, namely Gwendolene, Graham and Marion. She left her estate (about $686,000) to Gwendolene and Graham. She excluded Marion entirely and explained in her Will that her decision was due to a long term estrangement.

Mr and Mrs Keep objected to Marion’s wish to marry in 1971. They returned her wedding invitation with a note saying “we do not want anything to do with you”. Their estrangement went for some 38 years.

Marion was divorced with 4 children, one of whom had disabilities. She lived with very modest means and was suffering from health issues. The Court made provision of $200,000 to Marion.

Unsuccessful claim by a child: Burke v Burke [2015] NSWCA 195

Mrs Beryl Burke died aged 93 in 2012. Her estate was worth approximately $1.25 million. She was survived by 3 adult children: Terry, Alan and Diana.

Mrs Burke cut Terry out of her Will. She outlined in a letter that Terry had chosen to distant himself from the family and that the estrangement had caused the family a great deal of pain and upset.

Despite Terry’s significant financial needs, the Court dismissed his claim and held that there is no rule or principle mandating parents to provide for an adult child, irrespective of any estrangement.

Former Spouses – A Second Bite of the Cherry

In New South Wales, former husbands and wives are eligible to make family provision claims under the Succession Act 2006. Having a divorce property settlement is not conclusive to dismiss an ex-spouse’s claim.

Successful claim by an ex-wife: Lodin v Lodin [2017] NSWSC 10

Dr Mohammed Lodin, aged 65, died in 2014 without a Will. He and his ex-wife (the Applicant) were formally divorced in 1995 and signed a property settlement. Rebecca, as Dr Lodin’s only child, was entitled to the whole of Dr Lodin’s estate (about $5 million) upon intestacy.

After they separated, the Applicant was hostile and made Dr Lodin’s life absolutely miserable. Amongst other things, she made false but serious claims to the police about Dr Lodin. These claims were all dismissed, but the embarrassment Dr Lodin experienced at work led him to resign from the hospital.

Despite the Applicant’s actions, she won her case and was awarded a whopping $750,000 from the estate. The Court found that their divorce settlement was not sufficient to discharge the deceased’s moral obligations owed to the Applicant. It also found that Dr Lodin’s ability to accumulate wealth was attributed to his ability to work ‘untrammelled’ by responsibility for a wife and child.

There is no single conclusive factor that will define the outcome of a family provision case. All relevant circumstances will need to be carefully assessed. We encourage you to speak to a lawyer, whether you are a claimant, the executor or the beneficiary of an estate.

If you have any enquiries relating to a deceased estate, please contact Tim Mitchell, Solicitor Director of Bay Legal, by telephone (02) 9344 0682 or by email to tim.mitchell@baylegal.com.au ; or Codie Loh, Associate, by telephone (02) 9344 0682 or by email to codie.loh@baylegal.com.au .

Disclaimer: The information in this article is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from a legal practitioner in the office of Bay Legal.