Have you been given a small gift in a Will but think you should receive more from your parent’s estate? In a recent case a claim for further provision by an adult daughter “Jenny”, who in her mother’s Will was left $30,000 together with some personal items, was successful.
In that case Jenny was the 56 year old daughter of the deceased. Her mother gave her a gift of $30,000, chattels and personal effects including a drawing, an oil painting, a Buddha statue, her gold pearl and diamond ring, an art deco lamp and an unfinished painting. Apart from a gift of her wedding band, which she left to her grandson, the deceased gave the residue of her estate to her other daughter “Karen” who was 50 years of age. The only other person eligible to make a claim was her former husband, the father of both her children, however he did not make a claim.
The deceased died in 2018. The value of the estate was a modest amount of $571,873 or $433,200 after payment of the legal costs of the family provision proceedings.
When making her Will the deceased had given consideration as to what should be left to Jenny and this was discussed with her solicitor. In the deceased’s Will she included the following clause:
“I DIRECT that my daughter, Jenny, must not take any benefit or provision from my estate, other than the gifts bequeathed in clauses 5 and 6 herein. The decision to exclude Jenny from any further benefit or provision from my estate is made for the following reasons:
I have not had a close and/or personal relationship with Jenny since in or about October 2013.
I only speak with Jenny approximately 3 or 4 times per year in order to maintain contact with my grandchildren.
I do not feel supported by Jenny and consider that she is not willing to spend time maintaining a meaningful relationship with me.
In light of the size of my estate and my estrangement from Jenny, I consider that the gifts bequeathed to her in clauses 5 and 6 herein, are more than adequate provision.”
The deceased updated her Will after she was diagnosed with cancer and told by her Doctor to organise her affairs.
The deceased was clear with her instructions that she had minimal contact with Jenny and that she did not wish to make provision for Jenny. She lived with Karen and expressed her love and gratitude for Karen’s support.
After receiving advice, and encouragement from Karen, the deceased decided to give Jenny the gifts in the Will.
The deceased felt that her relationship with Jenny had broken down as Jenny expressed substantial hostility regarding Karen’s marriage to her current husband and this frustrated the deceased as she did not agree with how Jenny was treating Karen and felt she should have been supportive of Karen.
The deceased also moved from Queensland, where Jenny was residing, back to NSW where Karen was residing and the deceased felt that Jenny resented this and they had minimal contact thereafter.
Karen gave evidence that her mother thought Karen and Jenny’s father was going to leave a substantial part of his estate to Jenny with whom he resided and that the deceased had taken this into consideration when making her Will. Karen and Jenny’s father was suffering from dementia and therefore unable to change his Will so at some point in the future Jenny would receive that inheritance.
Justice Hallen accepted that there was not a complete estrangement between Jenny and her mother but that the relationship was not as close as it once had been. Although the deceased had made clear her intentions Justice Hallen was of the view that not all of the matters identified by the deceased accurately reflected the true position.
Jenny was unemployed and whilst she had investment properties her liabilities meant that she had little property of her own.
Justice Hallen ordered that Jenny receive $135,000 from the estate which would enable her to reduce all of her immediate debts and perhaps provide a modest amount for her advancement in life. Depending upon her choice, it would not necessarily relieve, in part, the mortgage debts, but it was Justice Hallen’s view that the deceased did not have an obligation to do so.
If you feel that you have been inadequately provided for in a Will please contact us at Turner Freeman to discuss a family provision claim against the Estate.
This case also shows that when giving reasons for leaving someone out of a Will, it is important that those reasons are accurate. If you would like to discuss your Will please contact us at Turner Freeman.