Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 21 May 2016.
This week’s column looks at an unusual estate claim and also serves as a reminder that often parties to a dispute are better-off resolving the matter without the intervention of the courts.
John makes a will leaving the whole of his estate to his de facto partner, Jane and names her as his executor.
John unexpectedly passes away. He leaves no children.
John’s estate consists of real estate and a substantial superannuation death benefit, which together total $560,000.
John’s mother, Joan, makes a claim against her son’s estate, seeking “family provision”.
A deceased person’s parent is not eligible to make a claim by virtue of parentage alone. To be successful, Joan needs to establish that she was, at some time, wholly or partly “dependent” upon John.
The claim is made within the 12 month limitation period, commencing from the date of John’s death.
Joan and Jane have a poor relationship which frustrates their ability to settle the matter amongst themselves. The matter proceeds to a hearing.
Joan claims that she was “dependent” upon her eldest son John because he would help around the house, do the washing up and baby sit his siblings. After leaving school at the age of 14 years and 10 months, John took a more active role in the performance of home duties, which also included assisting his mother with her business dealings and paperwork and also taking her to doctor’s appointments. In the absence of an active father figure, John’s assistance allowed Joan to take up full-time work.
The court found that dependency is not limited to financial dependency and includes “significant material or physical help”, which in this case amounted to help that was “beyond the normal duties performed by children”.
The court assessed Joan’s needs, in the light of community expectations, and despite noting that whilst Joan and her son had little contact during the last 5 years of his life and that a substantial portion of the funds will be used to pay Joan’s loans, awarded her the sum of $35,000.
The total legal costs, after a one-day hearing, totalled $90,000 and were paid out of John’s estate.
