In most Jurisdictions legislation governs who can bring a claim against a persons estate. Generally speaking this is: –
- The deceased’s spouse, a person living in a de facto relationship with the deceased at the time of death, a person living in a close personal relationship (such as a volunteer carer) with the deceased when the deceased died;
- The deceased’s child;
- The deceased’s former spouse;
- A person who was:
- Dependent (wholly or partly) on the deceased at a particular time (this may include a former de facto spouse, parent, sibling, or step-child; and
- A grandchild of the deceased, or a member of the household of the deceased;
- believe they have been left without adequate provision for the proper maintenance, education or advancement in life.
The Court takes a number of factors into account the applicant’s financial position, relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make a claim.
Adequate provision is unique and therefore difficult to define. The Court considers a broad range of factors, as the definition of adequate provision is unique to each circumstance brought before the court.
Leonard Missen (‘Len”) was a farmer who had been married twice and had two sons Leigh and Gary. Leigh had worked with Len on the family owned farms since 1976, although they never formally farmed in partnership.
Leigh married Karen, and had three children: Dale, Brad and Sarah. From 1992 to 2002, Leigh and Karen rented a farm in Ballan from Len. In 1996, forty-seven acres of the farm and the house at Ballan was transferred from Len’s sole name to joint names with himself and Leigh. This farm was sold in 2002, and Leigh and Karen now live on a farm they own in Rowsley, near Bacchus Marsh.
Gary, the eldest son of Len’s first marriage, took his own life in May 2005. Gary married had married twice; he had one son, Andrew with his first wife and another son, Lucas, with his second wife Angela. Gary and Angela separated when Lucas was ten months old. Lucas was five years old when Gary died.
In 1998, Len gifted one thirty-acre block of land in Rockbank, Victoria, to Gary. Shortly thereafter Gary sold this block of land for about $215,000.
Len did not provide any financial support to Lucas during his lifetime. As part of settlement of litigation commenced by Angela Gary’s estate was split 60/40 between Lucas and his half-brother, Andrew. And becomes available to Lucas when he turns 18 in July 2019.
Litigation commenced by Angela in 2008 created an estrangement between Angela and the wider Missen family, and, as Lucas was living with his mother, there was little opportunity for Len and Lucas to form a relationship.
Following Gary’s death Len and Lucas had no face-to-face contact. The level of contact between Lucas and his grandfather was disputed with Angela saying that Lucas and Len spoke by telephone every four to six weeks. Leigh and Karen said that there was little if any contact between Lucas and his grandfather after Gary died in 2007, and limited contact before that.
Len made his last will on 12 August 2009 (‘the will’). Leaving the whole of his estate (predominantly farming land agreed to be valued at $2,155,00) to Leigh. If Leigh were to predecease him, the estate was to be shared equally between Leigh’s children and Gary’s older son, Andrew. No provision was made for Lucas.
His son Leigh and Leigh’s wife, Karen the executors in his last will, obtained probate of the will in October 2014.
Angela commenced litigation as guardian for Lucas for orders that provision of proper maintenance and support be made in the form of one half of Len’s net estate on 12 October 2014 under the Administration and Probate Act 1958 (‘Act’).
The absence of any real relationship is a neutral factor in determining whether, at the time of Len’s death, Len had a moral duty to provide for Lucas’ proper maintenance and support.
In the absence of some special factor or unusual circumstance, prevailing community standards would not impose a responsibility on a grandparent to provide for a grandchild. However, these general principles must be read in the context of each case and the fact that a child’s parent has predeceased the grandparent is certainly a relevant factor.
The Court found that at the time of Len’s death he did not owe a moral duty to make further provision for Lucas. The position may well have been different had Lucas not received a substantial sum from Gary’s estate, which has increased over time, or if Angela’s financial position had been that it was necessary for the funds in Court to have been severely depleted. However, they have not been, and there are certainly sufficient funds available to finance the remaining period of secondary schooling, assist with tertiary education, and provide Lucas with a good start in life.
Indeed, that Len ought to have made over a substantial proportion of his estate to Lucas, in preference to his remaining grandchildren and to the detriment of his only surviving son, would be inconsistent with prevailing community standards to order provision for Lucas from Len’s estate particularly when the young person concerned is well supported by his family and has a substantial nest egg of his own.