DOES IT MATTER IF YOU THINK A WILL IS UNFAIR?

May 17, 2018

When a person believes that they weren’t dealt with fairly under their parent’s will because their brother or sister received more, what can they do? A recent Supreme Court decision looked at the issues that need to be considered when a family member contests a will on the basis that they weren’t adequately provided for. One of three children named in the will was to receive less than 17% of the total estate while his brother was left more than four times that amount, even though just two days before their mother died she had given the brother over $79,000.00.

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Wills are usually structured around families and so generally parents leave their estate to their children. A parent might however do so in different proportions to each of their children. Sometimes this is done due to the parent’s close or strained relationship with a particular child, a promise made during that parent’s lifetime or their child’s financial situation.

In South Australia the Inheritance (Family Provision) Act, identifies particular family members who can contest the will of a deceased. Under this law, a child of the deceased can contest the will on the basis that it doesn’t adequately provide for them. But it’s not enough that the child simply thinks the will is unfair. Just being a child of the deceased is not enough to make a successful claim and the Court will look at the personal circumstances of all those who are entitled to a benefit under the will.

In this case the woman died leaving three adult children: Angela, Michael and Andreas. The net estate was worth $420,000, and in the will the woman left her furniture and personal effects to her son Andreas and divided the remaining two thirds to Andreas (or about 66%) and one third to Angela and Michael jointly (or about 17% each). This did not include an amount of $79,000 that the woman had already given to Andreas just two days before she died.

Michael made an inheritance claim against his late mother’s estate, alleging he was left without adequate provision from the will. The Judge estimated that his 17% of the residue of the estate was worth about $70,000.

Based on these facts it might seem that since Andreas received a lot more than Michael the claim would be successful, however this case is a good example of the process that the Court will adopt when assessing this type of claim.

It is important to stress that in an inheritance claim the Court doesn’t specifically look at how much a parent loved their child. It would be an impossible task for anyone to work out how much a parent loved one child compared to others. The individual child’s relationship with their parent is a relevant factor but is not the only or decisive factor to be considered by the Court.

The inheritance laws specifically state that a child can make a claim if they have been left without adequate provision for their proper maintenance, education, or advancement in life. Factors that are considered include the child’s financial position, their state of health, the totality of the relationship between the child and the deceased, and the relationship the deceased had with other persons who have legitimate claims upon the estate. This is the first stage, and if the Court concludes that there hasn’t been adequate provision, then it will look at what provision should be made out of the estate.

The Court considered Michael’s relationship with the deceased. Michael reported that he had a happy childhood and while his mother was a difficult person with strong opinions, she and Michael shared a parent-child relationship that continued despite its ups and downs. Michael was 57 years of age, reported that he was steadily employed receiving an annual income of about $150,000 and had a net worth of about $810,065.

The Court took note that Michael had a good income and superannuation, his own home and an investment property and only one dependant daughter. His assets far outweighed his liabilities and the $70,000 he was to receive would enable him to pay some debts and fulfil his desire to travel.

Andreas, who had been gifted about 66% of the residual estate pursuant to the will also shared a close relationship with his deceased mother during her lifetime. The Court ultimately made a decision based on Andreas’ financial circumstances, this being the primary consideration under the law. The Court found that Andreas had a net worth of about $85,900 and an income of about $32,000 per year net. Andreas was in a significantly inferior financial position in comparison to Michael his brother, who had made the claim.

The Court concluded that Michael had failed to pass the first stage in his Inheritance Claim as he was left without adequate provision based on his financial standing. On that basis the Court was not required to make an assessment of his claim under the second stage and Michael’s claim did not succeed.

There are many factors considered by the Court when considering an inheritance claim. Seeking sound legal advice is vital to understanding the merits of your potential claim. At Websters Lawyers we have a number of solicitors experienced in South Australian inheritance claims and can represent you every step of the way. We offer an initial 20 minute consult to give you options and a realistic expectation of the costs involved to pursue your claim so you can make an informed decision on whether you wish to proceed.

Swanson & Anor v Reis & Anor (2018) SASC 20 [Link to www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASC/2018/20.html ]