$3 million further provision to adult son from deceased’s estate

In a recent Queensland Family Provision Application against the Estate of Bojan Darveniza[1], Justice Martin has awarded a grown adult son $3 million dollars further provision from his father’s estate.

The deceased died on 29 March 2010 leaving an estate worth approximately $27 million. The deceased had made no provision for his adult son from his first marriage. The deceased had stated in his Will his reasons for not providing provision for his adult son as follows:

  • During his lifetime he had purchased income  producing properties in his son’s name;
  • The deceased at the son’s request had recently transferred the management of those properties to his son to enable his son to be financially independent;
  • His son was a potential beneficiary under various trusts established by the deceased; and
  • The son had indirect interests in other properties owned by a company established by the Deceased in which the son was a shareholder.

Three other adult children of deceased also brought family provision applications against his estate and were awarded $2.7 million, $2.85 million and $3.2 million respectively, prior to trial.

The facts:

  • At the date of death of the deceased the son’s net  worth was 3.885 million. By the date of trial the son’s net worth had decreased to approximately $2.5 million;
  • The son was 6 years old when the deceased and his mother divorced;
  • The son started working for the deceased at the age of 18 years for little remuneration;
  • The son had also worked as a commercial airline pilot;
  • The deceased promised the applicant about what would happen to the family business if he would die;
  • The son was involved in an accident in 2004 which assessed him as having a 30% whole person impairment;
  • The deceased had provided for the applicant’s son throughout his lifetime;
  • When the deceased transferred the properties into the son’s names, the son also assumed a debt of approximately $300,000.

Court’s decision

Justice Martin determined that:

  • The estate was large;
  • The son had worked for the deceased and had contributed to the growth of the deceased’s property interests;
  • The son had substantial liabilities;
  • Two reasons stated in the Will were misconceived;
  • The son’s injury meant that he could not be a pilot or perform labouring work;
  • In relationship to the transfer of properties into the son’s name, it was in effect a discounted sale due to the liabilities owing;
  • $3 million further provision should be awarded for the son.

This case emphasises the importance that in a family provision application the ‘need’ of the applicant must be viewed in context with the size of the estate. In this case the estate was big enough to enable the son to be awarded further provision. In the writer’s opinion if it had been a smaller size estate, for example $2 million, the applicant would have had difficulty in his application for further provision from the estate. Each family provision application must be considered on a case by case basis.

More about the author

Jenna Hutchinson is an experienced Wills & Estates solicitor at Turner Freeman Lawyers. If you believe you have been unfairly left out of a Will and you want to contest or challenge the Will, contact Jenna on 1800 683 928 or via our online enquiry form. For more information about Wills and contesting a Will, please visits the Wills & Estates section of our website.

[1] Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza and Ors [2014] QSC 37