Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 2 July 2016.
When Jane dies a widow at the age of 89, she leaves John, her adopted son, 40% of her substantial estate. Jane has no other children and leaves the rest of her estate to her nieces and nephews. She appoints her nephew as her executor.
John is not happy with receiving just 40% of his late mother’s estate and commences family provision proceedings naming the nephew as defendant.
The court notes that an adopted child is regarded as a child of a deceased person for these types of claims.
The court hears evidence that Jane had complained of “abuse and harassment, on occasions, physical violence, swearing and calling her names and even threats being made by John to kill her”.
Jane had stated that she was “…very scared of John” and had said “I think it’s drugs and drinking”. Jane had also stated that she was worried that John would not be able to control his money and that if he received the whole of her estate, he may spend the money on drugs.
The court also heard evidence that John was a subject of an apprehended violence order (AVO) preventing him from seeing Jane after consuming alcohol. It was also noted that he had contravened the AVO and had a number of other convictions including damage to the deceased’s property, assault and larceny.
The court stated that John’s behavior “is not condoned by society, and cannot be condoned by the Court” and in circumstances where “community standards and community expectations would not require the making of additional provision for John”, the court dismissed John’s claim.
In relation to the payment of legal costs, the court noted that in these types of matters, costs are payable by the unsuccessful party with the effect that John’s 40% share of the estate was severely depleted by the substantial legal costs that were involved in a three-day hearing.
