In a recent South Australian case,[i] three adult children made a successful claim on their deceased father’s estate. The estate was small in size and was distributed early. The Court found that, even though the deceased had specified in his Will that he did not want particular children inheriting from him, the deceased had not made adequate provision for those children. The Court therefore ordered that $47,500 be paid to each of those children.

Mr Broadhead (“the deceased”) died a widower on 11 November 2011. In his Will, he left everything equally to his two youngest daughters S and K.

The deceased had six children in total. The eldest child was not involved in the proceedings, but his remaining three children J, B and E (the “plaintiffs”), aged in their low sixties, made a claim on his estate.

The net value of the estate was $333,423.81

Family history

The deceased and his wife emigrated form the United Kingdom in 1973; J, B and E remaining there to continue their employment. The two youngest daughters S and K were teenagers at the time and moved to Australia with their parents.

The undertaking

In a letter dated 14 June 2012 from S and K’s lawyer, S and K made an undertaking (a promise) not to distribute $75,000 of the estate’s money without giving reasonable notice to the plaintiffs of their intention to do so. The plaintiff’s lawyer responded to the letter, noting the undertaking.

On 30 May 2014, S and K’s lawyer advised the plaintiffs that the money had been spent and that there was no money left in the estate.
This meant all of the estate had been distributed before the proceedings commenced, even though the proceedings had begun within the six month time limit provided by legislation. [ii]In such circumstances, executors can be held liable to account for the moment if they had notice of the claim when distributing the estate.[iii]

The law

The Inheritance (Family Provision) Act 1972 (‘the Act’) permits the Court to order that provision be made out of a deceased’s estate for the maintenance, education or advancement of particular persons.[iv]

In order to determine the success or otherwise of a claim, the Court follows two steps:
1. The Court first determines whether the person making the claim has been left without adequate provision;
2. If the person has been left without adequate provision, then the Court determines what would be an appropriate provision (i.e. the amount they should receive).

In determining this, the Court considers what provision a just and wise testator (will-maker) would have thought it their moral duty to make had the testator been aware of all the relevant circumstances.[v]

The relationship

The Court felt that S and K exaggerated their evidence and tried to downplay the relationship and amount of contact that the plaintiffs had with their father. The court accepted the plaintiff’s evidence, noting that their relationship was affected by distance, but seemed to have been ‘continuous and, in the main, cordial’.[vi]

The Court accepted that J and E went to Australia a number of times to visit their family, and that the deceased returned to the United Kingdom on three times to visit his children. The Court also noted that B lived had in Australia for over 20 years.

B said that he and his father worked together occasionally, and ate meals and caught up together quite often.

Financial position

The Court said the financial position of the plaintiffs was modest.

J suffered from medical conditions and was no longer able to work. he was single, received a disability pension and benefits from the government of approximately L 1,000 per month, and had no other assets.

B suffered from Parkinson’s disease and could no longer work. He visited the deceased in Australia in 1987 and worked as a painter and decorator until 2008 when he was deported for overstaying his visa. He received a disability pension, but had no other assets.

E and her de-facto partner owned a house valued at approximately L 110,000 with a mortgage of approximately l 60,000. She worked part time, receiving approximately l 700 per month, and her partner received old age pension. E had no other significant assets or pension.

The Court felt that the daughter S was the best off. She and her husband had a home with a mortgage, and their income together was $112,923 for the recent financial year. S had superannuation of approximately $90,000 and her husband of $133,000.

As for K, the Court did not accept her evidence on the topic.

The result

The court was satisfied that the three plaintiffs J, B and E were left without adequate provision for their proper maintenance, education or advancement in life, noting that they were each in ‘poor financial circumstances’ with E’s position ‘not quite as poor as that of her brothers’.[vii]

The court decided that a wise and just testator would have made provision for each of the three plaintiffs in the amount of $47,500, and ordered that this amount be paid.

Turner Freeman wills and estates team can assist you with Deceased Estate & Disputes. Our South Australian offices are in Adelaide CBD and Whyalla.

[i] Broadhead & Ors v Prescott & Ors [2015] SASC 34

[ii] Inheritance (Family Provision) Act 1972 s 8(1)

[iii] Ibid s 14

[iv] Ibid s 7(1).

[v] Broadhead & Ors v Prescott & Ors [2015] SASC 34 per Dart J at [6]

[vi] Ibid at [26].

[vii] Ibid  at [44].